E-TIPS

On June 17, 2021, the Ontario Ministry of Government and Consumer Services (MGCS) announced the launch of public consultation on the MGCS’ white paper, which outlines proposals for reforming Ontario’s privacy protection framework.

On June 16, 2021, Canada’s Federal Court of Appeal (FCA) in ViiV Healthcare Company v Gilead Sciences Canada, Inc., 2021 FCA 122, upheld the Federal Court’s (FC) summary judgment dismissing patent infringement action brought by ViiV Healthcare Company (ViiV) against Gilead Sciences Canada, Inc. (Gilead), as previously reported by the E-TIPS® Newsletter here. The FCA also dismissed ViiV’s appeal from three interlocutory orders, including ViiV’s motion to adjourn or quash Gilead’s motion for summary trial.

On June 25, 2021, Health Canada announced proposed amendments to the Natural Health Products Regulations (the Proposed Regulations) in an effort to make natural health product (NHP) labels more clear, legible and easier to understand for consumers, and to align with rules already established for non-prescription drugs.

On June 11, 2021, the Federal Court of Canada (the Court) in Sadhu Singh Hamdard Trust v Navsun Holdings Ltd, 2021 FC 602, found Navsun Holdings Ltd (Navsun) liable for passing off in respect of Hamdard Trust’s (Trust) trademark and awarded Trust $10,000 in compensatory damages for the period July 2004 to September 2009. The dispute was lengthy and was previously dealt with in 2018 FC 42 and 2019 FCA 10 (as reported by the E-TIPS® Newsletter here and here, respectively). The present decision is a second redetermination of the issues between the parties.

On June 9, 2021, the Federal Court of Appeal of Canada (FCA) in Sunovion Pharmaceuticals Canada Inc. v Taro Pharmaceuticals Inc., 2021 FCA 113, dismissed the appeal of Sunovion Pharmaceuticals Canada (Sunovion, or the ‘first person’) from the Federal Court (FC) decision, 2021 FC 37, allowing Taro Pharmaceuticals Inc. (Taro, or the ‘second person’) to amend its statement of defence in the context of an action brought under the Patented Medicines (Notice of Compliance) Regulations (the Regulations).

On June 9, 2021, the Ontario Superior Court of Justice issued its decision in Owsianik v Equifax Canada Co, 2021 ONSC 4112, where the majority allowed an appeal arising from the plaintiff’s successful class certification motion, finding that entities that collect and store private information cannot be liable for intrusion upon seclusion by failing to prevent the intrusion of another.

On June 10, 2021, the Federal Court of Canada (the Court) issued its decision in Subway IP LLC v Budway, Cannabis & Wellness Store, 2021 FC 583, where it granted Subway IP LLC (Subway) damages for infringement, passing off, and depreciation of goodwill of its registered trademarks.

On June 10, 2021, the Office of the Privacy Commissioner of Canada (OPC) issued a statement following its investigation into the RCMP’s use of Clearview AI’s facial recognition technology (FRT), reporting that the RCMP contravened the Privacy Act (the Act) when it collected information from Clearview AI.

On June 17, 2021, the Federal Court of Canada (the Court) issued its decision in H-D U.S.A., LLC v Varzari, 2021 FC 620, in which Justice McHaffie found in favour of H-D USA, LLC and Harley-Davidson Canada LP (collectively, the Applicants) for trademark infringement, passing off and depreciation of goodwill in relation to custom-built electric bicycles sold by Mr. Varzari.

On May 26, 2021, the Federal Court of Appeal of Canada (FCA) issued its decision in Teksavvy Solutions Inc. v Bell Media Inc., 2021 FCA 100, upholding the decision of the Federal Court (FC) to issue Canada’s first website-blocking order, which requires Internet service providers (ISPs) to block access to certain websites hosting unauthorized content.

On May 27, 2021, the Federal Court of Canada (Court) issued its decision in Winkler v. Hendley, 2021 FC 498, summarily dismissing an action for copyright infringement and reaffirming the long standing principle that there is no copyright in facts. This principle applies in cases where the author’s work is plausibly represented as nonfictional and historically factual, even if it may subsequently be shown as untrue.

On May 27, 2021, the Canadian Radio-television and Telecommunications Commission (CRTC) announced that it had finalized the rates that large companies can charge competitors to access their high-speed broadband networks under the industry’s existing wholesale aggregated model. This decision resolves a long-standing dispute under the industry’s current wholesale framework and allows the CRTC to now shift its focus towards the industry’s new disaggregated wholesale model that is set to be implemented in the future.

On May 13, 2021, the Québec government introduced Bill 96 An Act respecting French, the official and common language of Québec (Bill), which proposes amendments to the Charter of the French language. One of the proposed amendments in the Bill requires non-French-language marks to be registered under the Trademarks Act in order to appear on public signs, posters and commercial advertising. The proposed amendments no longer recognize common law trademarks as “recognized trademarks” in Québec.

On June 1, 2021, the Federal Court of Canada (the Court) in Schneider Electric Industries SAS v Spectrum Brands, Inc., 2021 FC 518, dismissed an appeal challenging the Registrar of Trademarks decision, 2019 TMOB 94, finding that an opponent in a trademark opposition proceeding is not required to amend its statement of opposition in order to rely on an amended trademark registration which extends the statement of goods or services.

On May 11, 2021, the Privacy Commissioner of Canada released his submission to the House of Commons Standing Committee on Access to Information, Privacy and Ethics on Bill C-11 (the Bill), the federal government's proposed new private-sector privacy legislation introduced in November 2020 that would replace the current regime under the Personal Information Protection and Electronic Documents Act (as previously reported by the E-TIPS® Newsletter here).

On May 19, 2021, the Privacy Commissioner of Canada alongside provincial and territorial privacy commissioners and the ombuds of Manitoba and New Brunswick (the Commissioners) issued a joint statement on privacy considerations for COVID-19 vaccine passports (the Joint Statement). In the Joint Statement, the Commissioners recognized the substantial public benefit vaccine passports may offer, but stressed that privacy should be “front and centre” for governments and businesses considering vaccine passports as a tool to help Canadians return to normal life.

On May 13, 2021, the Federal Court of Canada (the Court) issued its decision in Canadian Broadcasting Corporation v Conservative Party of Canada, 2021 FC 425, in which it dismissed the copyright infringement claim brought by the Canadian Broadcasting Corporation (CBC) against the Conservative Party of Canada (CPC) for “attack ads” shown at the time of the 2019 federal election.

On May 13, 2021, the Office of the Privacy Commissioner of Canada (the OPC) announced that it has closed its file on a complaint against the Liberal, Conservative, and New Democratic Parties (the Parties), noting that the activities in the complaint are not subject to the privacy obligations under the Personal Information Protection and Electronic Documents Act (PIPEDA).

The Federal Court of Appeal of Canada (the Court) recently dismissed the appeal in Apotex Inc. v Shire LLC, 2021 FCA 52. This was an appeal of a decision holding that the claims of Canadian Patent No. 2,527,646 (CA 646), directed to L-lysine-d-amphetamine (LDX), were valid. In this decision, the Court outlined that a selection patent is subject to the same requirements and vulnerable to the same attacks as any other patent, and in particular, that the validity analysis does not change depending on whether the patent was classified as a selection patent.

Canada’s Intellectual Property Office (CIPO) recently announced steps to attempt to address the growing backlog of unexamined Canadian trademark applications. However, progress is still expected to be slow.