E-TIPS

On August 25, 2022, the Federal Court of Canada (the Court) in Sweet v Canada, 2022 FC 1228, certified a class action against the Government of Canada (the Defendant) relating to data breaches in which hacker(s) gained access to the personal, financial and other information of thousands of Canadians through Government of Canada websites.

On August 16, 2022, the Ontario Court of Appeal (the Court) issued its decision in Apotex Inc. v Eli Lilly Canada Inc., 2022 ONCA 587, dismissing Apotex’s appeal and affirming the lower court’s summary judgment that struck out Apotex’s claim for damages from its generic drug being kept out of the market due to Eli Lilly’s issued patent that was ultimately declared to be invalid. The Court found that the patent regulatory scheme contains a “complete code” of remedies in such a case, and Apotex could not assert any other statutory and common law claims for damages.

On August 24, 2022, the latest annual report (the Report) was released by the Office of the Information and Privacy Commissioner for British Columbia (the OIPC), for the period of April 1, 2021 – March 31, 2022 (FY 2021-22).  The Report highlights key developments in British Columbia as it relates to: (1) the regulation of artificial intelligence systems (AI systems) in the public sector; (2) the protection of personal information; and (3) the public’s right to access information.

On August 24, 2022, the Superior Court of the State of California for the County of San Francisco (the Court) approved a settlement between the Attorney General of California (AG) and Sephora USA, Inc. (Sephora) relating to violations of the California Consumer Privacy Act (the CCPA). The settlement requires Sephora to pay $1.2 million in penalties and comply with certain injunctive terms.

On August 31, 2022, the Civil Resolution Tribunal of British Columbia (the Tribunal) issued its decision in 1316633 B.C. Ltd. v Windsor-Martin, 2022 BCCRT 979, finding that the alleged copyright infringement claim fell outside the Tribunal’s jurisdiction.

On August 12, 2022, the Federal Court of Canada (the Court) issued its decision in Mars Canada Inc. v John Doe #1 (King Tuts Cannabis), 2022 FC 1193, in which it granted, in part, a motion for default judgment against three of five defendants for trademark infringement, depreciation of goodwill, and passing off relating to the defendants’ sale of THC-infused candy in association with the registered SKITTLES trademarks and lookalike SKITTLES packaging.

On August 4, 2022, the Federal Court of Appeal of Canada (FCA) issued its decision in Pharmascience Inc. v Bristol-Myers Squibb Canada Co., 2022 FCA 142, finding that the Federal Court (FC) did not err in holding that the patents at issue are valid.

On August 3, 2022, the Québec Superior Court of Justice (the Court), in Zukerman c. MGM Resorts International, 2022 QCCS 2914, authorized a class action against MGM Resorts International for its alleged failure to implement proper security measures to protect its customers’ personal information in relation to a 2019 data breach.

On August 11, 2022, the Office of the Privacy Commissioner of Canada (OPC) published a report on its survey of Canadian businesses regarding privacy related-issues (the Survey). This is the first survey of businesses published by the OPC since the beginning of the COVID-19 global pandemic – allowing for comparisons to be made with the pre-pandemic landscape.

On August 5, 2022, the US Court of Appeals for the Federal Circuit (the Court) in Thaler v Vidal, Case No. 21-2347, finding that an artificial intelligence (AI) system could not qualify as an “inventor” under US patent law. The Court affirmed the earlier decision of the lower court in the Eastern District of Virginia (the District Court), as previously reported by E-TIPS® Newsletter here.

Further to our previous E-TIPS® articles on the Working for Workers Act, 2022 (the Act) found here and here, on July 12, 2022, Ontario’s Guide to the Employment Standards Act (the Guide) was updated to provide Ontario employers with guidance regarding the disclosure requirements for the electronic monitoring of employees that must be complied with by October 11, 2022.

On July 5, 2022, the Legal Board of Appeal of the European Patent Office (EPO) issued its decision in case J 8/20. The Legal Board of Appeal (the Board) confirmed the decision of the Receiving Section of the EPO to refuse patent application number EP 18 275 163 on the basis that an artificial intelligence (AI) system cannot be the inventor of a patent.

On July 14, 2022, the Office of the Privacy Commissioner of Canada (OPC) provided its submission in response to a consultation launched by the Canada Border Services Agency (CBSA) on proposed Regulations for the Examination of Documents Stored on Personal Digital Devices (the Regulations).

On June 29, 2022, the Québec government published draft regulations respecting confidentiality incidents (the Draft Regulations) that provide details on how public and private sector organizations should be required to handle breaches affecting personal information under the new privacy regime in Québec.

On July 14, 2022, the Federal Court of Canada (the Court) issued its decision in Dragona Carpet Supplies Mississauga Inc. v Dragona Carpet Supplies Ltd., 2022 FC 1042, in which it dismissed the Plaintiff’s action and expunged the Plaintiff’s trademark registrations on summary trial.

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.