E-TIPS

On July 9, 2024, the Office of the Privacy Commissioner of Canada (OPC), along with 25 privacy enforcement authorities around the world, published their findings following a global privacy sweep conducted earlier this year on more than 1,000 websites and mobile apps.

On June 26, 2024, Innovation, Science and Economic Development Canada (ISED) launched a public consultation on Canada’s artificial intelligence (AI) computing infrastructure. The feedback from this consultation will shape the design and implementation of the AI Compute Access Fund (the Access Fund) and the Canadian AI Sovereign Compute Strategy (the Sovereign Strategy), which are initiatives launched by Budget 2024.

On June 21, 2024, the British Columbia Supreme Court (the Court) in British Columbia (Attorney General) v. Gondor, 2024 BCSC 1077, ordered the return of electronic records containing personal information (the Identified Records) that belonged to a public body employer, the District of Saanich (the District), after finding that the District’s former employee (Gondor) made copies of the Identified Records and distributed them without authorization.

The Canadian Intellectual Property Office (CIPO) has at very long last finally made progress in tackling the long-standing trademark examination backlog. In a 2024 issue of our E-TIPS® Newsletter (see here for a previous report by the E-TIPS® Newsletter), we noted that there were reasons for optimism, and our optimism appears to have been justified.

On June 26, 2024, the Québec government published the final version of the Regulation to amend mainly the Regulation respecting the language of commerce and business (the Regulation), which clarifies some uncertainties raised by Bill 96 regarding non-French trademark use in Québec. The trademark requirements under Bill 96 and the Regulation are set to come into force on June 1, 2025.

On June 10, 2024, the Office of the Privacy Commissioner of Canada (OPC) announced an exploratory consultation seeking public comments on privacy-protective age assurance with a goal of developing a future guidance document on the design and use of age-assurance systems.

On June 3, 2024, the Supreme Court of British Columbia (the Court) released its decision in Ari v Insurance Corporation of British Columbia, 2024 BCSC 964, finding that damages of $15,000 per class member fell within the category of a “modest or nominal award” in the circumstances.

On June 8, 2024, the Canadian Intellectual Property Office (CIPO) launched a consultation on proposed amendments (the Amendments) to the Trademarks Regulations (the Regulations), which are intended to increase the efficiency of proceedings before the Trademarks Opposition Board (TMOB) and discourage certain undesirable behaviours.

On May 31, 2024, the Supreme Court of Canada (the Court) released its decision in Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, finding that contracting parties can vary or exclude the application of an implied condition under Ontario’s Sale of Goods Act (SGA) by an express agreement in a form of an exclusion clause, without the requirement to include particular “magic words” to be enforceable.

On June 6, 2024, the Office of the Privacy Commissioner of Canada (OPC) tabled its 2023-2024 Annual Report to Parliament on the Privacy Act and the Personal Information Protection and Electronic Documents Act (the Annual Report). The Annual Report summarizes the OPC’s efforts over the past year to protect and promote the fundamental privacy rights of Canadians in the digital era.

On May 18, the Canadian Intellectual Property Office (CIPO) published proposed amendments to the Patent Rules (the Rules), among other regulations, providing details regarding Canada’s new patent term adjustment (PTA) system to take effect on January 1, 2025.

On May 27, 2024, Innovation, Science and Economic Development Canada (ISED) announced that eight additional organizations have undertaken a voluntary commitment in support of the ongoing development and management of artificial intelligence (AI) systems in Canada, becoming new signatories to the Voluntary Code of Conduct on the Responsible Development and Management of Advanced Generative AI Systems (the Code).

On May 29, 2024, the Federal Court (the Court) issued its decision in Red Maple Manufacturing Inc. v Red Maple Bio Inc., 2024 FC 817, setting aside the portion of the Trademarks Opposition Board’s (TMOB’s) decision that ordered the deletion of registered goods from Red Maple Manufacturing’s (RMM’s) trademark registration for RED MAPLE NATURALS Design Mark (the Mark).

On May 24, 2024, member states of the World Intellectual Property Organization (WIPO) approved a new WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (the Treaty), marking the first WIPO Treaty to (a) address the interface between these areas; and (b) include provisions for Indigenous Peoples as well as local communities.

On May 13, 2024, the Ontario Government tabled Bill 194, Strengthening Cyber Security and Building Trust in the Public Sector Act, 2024 (Bill 194) which, if passed, would enact the Enhancing Digital Security and Trust Act, 2024 (EDSTA) and amend Ontario’s public sector privacy legislation, the Freedom of Information and Protection of Privacy Act (FIPPA).

On April 30, 2024, the United States Patent and Trademark Office (USPTO) published a Request for Comments (RFC) regarding the impact of the proliferation of artificial intelligence (AI) on prior art, the assessment of the level of skill/knowledge of a person having ordinary skill in the art (PHOSITA), and determinations of patentability made in view of these evaluations.

On April 22, 2024, the Federal Court (the Court) issued its decision in D.M.C. SRL v Giusti, 2024 FC 605, upholding the Trademarks Opposition Board’s (TMOB’s) decision rejecting D.M.C. SRL’s (DMC’s) opposition to Ermenegildo Giusti’s (the Respondent’s) application to register the trademark GIUSTI PROSECCO (the Mark).

In today’s digital age, seeing is no longer believing. Deepfake technologies are shaking up the legal landscape as Canada grapples with how to catch up to these AI imposters. Deepfakes are hyper-realistic media manipulations created using artificial intelligence (AI), where images, audio, or videos, are either digitally altered or fully generated by AI to convincingly replace one person’s likeness with another.[i] These sophisticated synthetic multimedia manipulations are blurring the lines between reality and fiction.

Over the past few years, regulatory amendments have permitted linking of outside “technical” documents to various regulations administered by Health Canada, especially the Food and Drug Regulations (the Regulations). Although this allows timely updates to technical standards, it also takes important regulatory matters outside of the Canada Gazette process (which permits public comment) and by outsourcing requirements to international bodies, defeats in-Canada democratic oversight of bureaucratic actors. This is part of a process of “outsourcing” Canadian law to external bodies which has been ongoing for some time.

On April 30, 2024, the Ontario Superior Court of Justice (the Court) released its decision in LifeLabs LP v Information and Privacy Commr. (Ontario), 2024 ONSC 2194, dismissing LifeLabs LP’s (LifeLabs) application for judicial review and finding that the Information and Privacy Commissioners of Ontario and British Columbia (ON IPC and BC IPC, respectively) did not err in their application of the law on solicitor-client and litigation privilege, nor breach LifeLabs’ right to procedural fairness.