Thursday, December 22, 2011
In Ontario, the Ontario Securities Commission regulates the Toronto Stock Exchange (TSX), while in BC the British Columbia Securities Commission regulates the Vancouver Stock Exchange (VSE). However, there is no single capital markets regulator covering all of Canada.
A nationwide regulator covering all of Canada would ensure that Canada’s financial markets are regulated with the same laws and enforced with the same rigor, fueling Canada’s economy and maintaining Canada’s financial stability. With that aim in mind, the federal government has been trying to create a nationwide securities regulator for Canada for some time, under its proposed Securities Act. Unfortunately, the creation of a nationwide securities regulator was dealt a setback by the Supreme Court of Canada in the Reference re Securities Act released today.
The problem is that under the Canadian constitution, the federal government has a general power to regulate trade and commerce but each provincial government has the sole power to regulate matters over property and civil rights and matters of a local or private nature within their own province. The Court held that as it is currently drafted, the proposed Act is not chiefly aimed at genuine federal concerns, but is principally directed at the day‑to‑day regulation of all aspects of securities and is thus unconstitutional.
The Court however recognized that there are specific aspects of the Act aimed at addressing matters of genuine national importance that is distinct from provincial concerns, including the management of systemic risk and national data collection, which the provinces, acting alone or in concert, lack the constitutional capacity to sustain a viable national scheme.
The next step for the federal government then would be to redraft the Securities Act taking into account the Supreme Court’s ruling, and hopefully reintroduce it later on in 2012. A nationwide regulator is important for Canada as a whole, and the federal government should make it a priority in the new year.
Wednesday, November 23, 2011
If you’re buying a home (or any real estate) in Canada from a seller who normally does not live in Canada (called a non-resident), you may be liable for additional taxes if you are not careful. Under section 116 of the Income Tax Act of Canada, a buyer who buys Canadian property from a non-resident may be liable for up to 25% of the capital gains the non-resident seller made on the sale.
In such cases, the buyer must obtain a Clearance Certificate issued by the Canada Revenue Agency under section 116 to relieve them of this tax liability. The process to obtain this certificate can be complex and must involve the seller’s lawyer and the seller’s accountant working together. In some cases, CRA can take a few months to issue the certificate. If you are a non-resident seller, or are buying property from a seller who normally does not live in Canada, consult your lawyer about the s. 116 clearance certificate process.
Wednesday, October 19, 2011
In Crookes v. Newton, 2011 SCC 47, the defendant Newton had posted material on his website linking to other websites that contained defamatory material about the plaintiff Crookes. Crookes sued Newton on the basis that two of the links he created connected to defamatory material, and that by using those hyperlinks, Mr. Newton was publishing the defamatory information.
The Court concluded that:
Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.
[...] the use of a hyperlink cannot, by itself, amount to publication even if the hyperlink is followed and the defamatory content is accessed [...]As the plaintiff in a defamation suit must prove on that the defamatory words were "published", the use of a hyperlink to defamatory material, without more, is not defamatory.
Wednesday, September 21, 2011
An important thing to keep in mind when buying a condo, especially a resale condo, is that you're not just buying the condo unit itself - you're also buying a share of the entire building, including all its assets and liabilities. As such, the financial and legal health of the condo corporation is very important and should be taken into account when deciding whether to buy that condo you just saw or not.
A client found out first hand when she brought a condo this spring. The condo was in dream location downtown, within easy walking distance to Queen's Park. It wasn't a new condo, but the building looked well maintained, and the unit itself had a spectacular view of the downtown skyline. She made an offer for the condo, and to her delight, it was accepted. She just brought her dream home!
Amidst the euphoria of buying a new place, she also did something very smart. She had me review the Agreement of Purchase and Sale before she put in the offer, and I advised her that she should put in a condition for her lawyer to review the condo's status certificate and to be satisfied with it if the deal is to go through.
A status certificate is a report on the financial and legal health of the condominium corporation. Anyone can request a status certificate from the condo management office as long as they pay a $100 fee. A status certificate can reveal many things, for example:
- upcoming major projects, for example installing new elevators or new exterior windows, which may result in an increase in management fees
- pending legal action against the condo corporation, which may result in the condo corporation requiring management fee increases in order to pay a legal settlement
- unpaid condo management fees by the seller
- potential problems with non-standard improvements made to the condo by the seller
As this client found out, having me review the status certificate for a condo paid off. She found out that the condo corporation was planning to undertake a major rooftop renovation, which would result in an increase in her condo management fees of about $100 a month. With this information in hand, she was able to renegotiate a lower purchase price for the condo.
By having me review the status certificate to spot potential problems, she avoided any surprises when she moved into her dream home.
Thursday, September 08, 2011
In addition, the court confirms that liability is not avoided by automating the website scraping as the scraping program must initially be set up manually.
Sunday, August 07, 2011
A real estate lawyer can help:
- Advise and explain the Agreement of Purchase and Sale and what it means in relation to your rights as a homebuyer
- Ensure clear title to the house you're buying, so that you're actually buying the house that you think you're buying and that there are no problems with the title to the house that may expose you to litigation or other hazards in the future
- Ensure compliance with municipal bylaws, zoning requirements, and all required building and fire codes - especially important for buyers who intend to rent out a basement apartment for example
- Draft and take care of all paperwork in relation to the real estate transaction, including the deed, mortgage and lending documents with your lender, the bill of sale for chattels, residency declarations, and more
- Advise on tax matters related to the real estate transaction, including the Ontario Land Transfer Tax, the Toronto Land Transfer Tax, and the Harmonized Sales Tax (HST/GST)
- Advise on federal and provincial incentives and rebates for new and existing homeowners
Friday, July 22, 2011
Some of the changes include:
- Bad Faith "Legitimate Interest Factors" are now Non-Exhaustive.
- Bad Faith Factor of Commercial Gain Added.
- Electronic Filing of complaints and respondent submissions.
- Separation of Filing Fees from Panellist Fees.
- "Previously, Complainants were required to pay the entire $4,000 filing fee upon filing a CDRP complaint. Under the revised CDRP Rules, Complainants are now only required to pay the Dispute Resolution Provider fee of $1,000 to file a complaint."
Thursday, June 23, 2011
The pair of bills have some differences between them that needs to be resolved, but together they present a broad change to the way the US patent system works.
Currently, the US remains one of the few countries in the world where patents are awarded based on whoever first invents a claimed invention. This is called "first-to-invent" and has created an environment where there is a lack of incentive for inventors to file patents. Encouraging inventors to file patents and disclose their invention to the public in return for a time-limited monopoly is a policy objective of patent law, since the advancement of science relies on building upon what is already known. As Isaac Newton once said, "If I have seen further it is only by standing on the shoulders of giants".
With the new reforms, the US moves to a "first-to-file" system in which a patent is awarded to the inventor who files for a patent first. This provides an incentive for inventors to file patents as soon as they make an invention in order to prevent any subsequent person who independently makes the same invention from acquiring patent rights.
Canada already uses the "first-to-file" system, and has been using such a system since 1989.
Monday, June 20, 2011
Closer to home, tomorrow is the appeal hearing for Amazon v. Canada, Federal Court File A-435-10, in which Amazon seeks to have the Court of Appeal confirm that methods of doing business (such as a method of doing "1-click" shopping online in this case) are patentable in Canada. We should see a decision from the Court within a year.
These are exciting times for the patent bar as well as for scientists worldwide, as these decisions can affect many companies' R&D directions in the coming years.
Sunday, May 29, 2011
When registering for a trademark, it's important to do a search to find out if there's another party that may also be using a confusingly similar mark somewhere else in Canada.
As the Supreme Court of Canada held last week in Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27, in order for the owner of a registered trademark to have exclusive use of the trademark throughout Canada, there cannot be a likelihood of confusion with another trademark anywhere in the country.
In view of this recent ruling, it is recommended that a search be done before filing for a trademark registration in order to properly determine whether or not the registration is likely to succeed.
Saturday, May 14, 2011
The Act includes a list of all such "government institutions", which includes for example the Department of National Defence, the Department of Health, the Department of Justice, and the Royal Canadian Mounted Police, but does not include ministerial offices for any of the listed Departments.
However, records located within ministerial offices for any of the listed Departments may nonetheless be subject to disclosure if the record relates to a departmental matter, and if a senior official of the government institution could reasonably expect to obtain a copy upon request (Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25).
Journalists, lawyers, and Canadians of all walks of life have relied on Access to Information requests to obtain enlightening information from a sometimes reluctant government. If you need help with enforcing an Access to Information request, a lawyer may be able to help.
Thursday, May 05, 2011
Late last year, the Federal Court of Appeal held in Alberta (Education) v. Access Copyright, 2010 FCA 198, that the tribunal "Access Copyright" made no error when it determined that the photocopying of excerpts from textbooks for use in classroom instruction for students in kindergarten to grade 12 was not fair dealing. This is a major win for copyright holders as it clarified their scope of copyright in the context of education.
Today, the Supreme Court of Canada announced that it will hear an appeal of the Federal Court of Appeal's decision in Alberta (Education) v. Access Copyright. The outcome of this appeal, in addition to the landmark case of CCH v. LSUC, 2004 SCC 13, could clarify the law of copyright in Canada for years to come.
Wednesday, May 04, 2011
Companies that manufacture, import, advertise or sell goods such as baby walkers, kite strings that may conduct electricity, lawn darts, and bisphenol A baby bottles need to be aware that this Act specifically prohibits these goods for sale in Canada.
Other notable aspects of this Act include a duty to report health and safety incidents and the power for mandatory recall orders, which will be discussed in a later post.
Wednesday, April 27, 2011
The Court of Appeal has now confirmed that the appeal hearing will be heard in Toronto (not Ottawa as previously reported) on June 21, 2011 at 9:30am. A decision should be rendered before the end of 2011. Depending on the appeal decision, we may see the Supreme Court grant leave to tackle this issue in 2012.
Tuesday, April 19, 2011
Under 35 U.S.C. § 282, an issued patent is presumed to be valid (in other words, it's assumed to be novel and non-obvious). Since the 1980s, the Court of Appeal has held that this presumption of validity may only be rebutted with evidence meeting a "clear and convincing" standard.
Microsoft, having lost at the trial level and at the Court of Appeal, argues that the "clear and convincing" standard is too high and that the correct standard should be the lower "preponderance of evidence" standard. Microsoft argues that the requirement for "clear and convincing" evidence was a requirement made solely by the Court of Appeal and was not the intent of Congress.
i4i, as the patent holder in this case, argues that maintaining the "clear and convincing" standard is necessary for protecting American innovation and inventors, and that Congress had implicitly endorsed the "clear and convincing" standard forwarded by the Court of Appeal by not enacting a law saying otherwise.
As an added twist, the specific evidence that Microsoft now seeks to introduce in order to argue that i4i's patent is invalid was not previously considered by the US Patent Office during the prosecution of the patent application. Thus, the Supreme Court may end up treating evidence previously considered by the US Patent Office differently than evidence not previously seen by the US Patent Office.
Despite the rhetoric about protecting American innovation, I think a certain amount of deference is due if the evidence introduced was already considered by the Patent Office during prosecution. In my view, the higher "clear and convincing" standard should apply to evidence previously considered during prosecution, while the lower "preponderance of evidence" standard should apply for evidence not previously considered by the Patent Office.
A decision is expected from the US Supreme Court before the end of June 2011. Chief Justice Roberts recused himself, so the case will be decided by the remaining eight justices. If the Supreme Court splits 4-4 then the "clear and convincing" evidentiary standard stands.
Friday, April 15, 2011
Since patents are only awarded to an inventor for an invention that's new and inventive over the current state of the art, when you file a patent application you want to know if there's any prior art that can make your patent application not new or not inventive. In Canada, any prior art from a third party that publicly disclosed your invention before you filed your patent application will take away your patent rights because it will make your patent application not new or not inventive.
So what should you do? Before drafting your patent application, a search for prior art should be done to assess the current state of the art. Knowing what kind of prior art is out there means that your patent application can be drafted so that it remains new and inventive over the prior art and increases its chances of being allowed as a patent.
Wednesday, March 23, 2011
Later this week, the 40th Parliament will be dissolved and an election will be called. Opposition parties are anxious to bring down the Conservative minority government, whether by voting against the budget or by a non-confidence vote for being in contempt of Parliament.
When Parliament is dissolved, every bill that has yet to be passed, including the current copyright reform bill C-32, An Act to amend the Copyright Act, will "die on the order paper". It will be up to the next Parliament to introduce a copyright reform bill, if they choose to do so.
This also means that copyright should become an election issue. Whether or not you're satisfied with bill C-32, now is the time to exercise your democratic muscle and express any concerns you may have with your (soon to be campaigning) Member of Parliament. Be sure to question all of the candidates who are running in your riding about their views on copyright reform, digital locks and fair dealing, and compare their responses. If you're not satisfied with their answer, don't vote for them.
(Interestingly, this also marks the third time that a copyright reform bill has died because of an election being called: Bill C-61 died in 2008 under the Harper minority government, and Bill C-60 died in 2005 under the Martin minority government).
Tuesday, March 01, 2011
One of her priorities is to strengthen PIPEDA, the Personal Information Protection and Electronic Documents Act, when it faces a mandatory review by Parliament later this year.
The main items that Stoddart has hinted she'll push for include increased enforcement powers for the Federal Privacy Commissioner and tougher penalties for companies found to have failed to comply with PIPEDA, including publicly naming violators.
With regards to enforcement and penalties, Commissioner Stoddart notes that Canada has "become one of the few major countries where the data protection regulator lacks the ability to issue orders and impose fines." In contrast, "the CRTC has the power to to impose fines for violations of the do-not-call rules (and recently slapped Bell Canada with a record-setting $1.3-million penalty)." In addition, "there are significant fines – $10 million for businesses – provided for in the new anti-spam law." Furthermore, privacy regulators like the UK Information Commissioner and the Spanish Data Protection Agent all use their enforcement powers to successfully signal that privacy violations will be met with financial penalties.
Finally, Commissioner Stoddart candidly admitted that there is a growing discomfort with the secretive nature of privacy investigations under PIPEDA:
It seems to me that not naming names is robbing the Canadian public of much of the educational value of our investigative findings.
Tuesday, February 22, 2011
However, just because maintenance fees are due to the government does not mean that anyone can pay them. In Unicorp v. Canada, 2011 FCA 55, a law firm tried to pay the maintenance fee for an patent, but as it was not the appointed agent for patent in question, the payments were refunded and were not applied to the patent. The patent was subsequently deemed to be irrevocably abandoned due to a failure to pay the required maintenance fee. The Federal Court of Appeal affirmed that the patent was irrevocably abandoned due to a failure to pay fees.
It's thus important to remember that while remembering to pay maintenance fees are important, it is just as important to ensure that the person or entity paying the maintenance fee is the appointed agent, or is otherwise an authorized correspondent to the patent or patent application in question. In patent law, having money and paying it to the government isn't enough; who pays the money is just as important.
Wednesday, February 09, 2011
It's been a long time coming, as we were expecting Kik's statement of defence to be filed with the court at the end of December. Finally, on Monday Feb 7, 2011 (well after the 30 day deadline for Canadian defendants), Kik filed their defence and counterclaim after the Court granted them an extension of time.
I had a look at Kik's Statement of Defence and Counterclaim today (available here, 7MB PDF).
Kik denies that it was developing a cross-platform instant messaging client in secret or had access to RIM's BBM confidential documents, denies that it's infringing on RIM's trademarks or patents, and found prior art (EP093213, JP10013881, Outlook 2000, and a whole list of documents in Schedules A & B) which Kik alleges makes RIM's asserted patents invalid.
Kik theorizes that as a result of the "overnight success of Kik Messenger", "senior executives at RIM caused RIM to embark on a campaign to destroy or seriously harm Kik, including unilaterally terminating the various agreements between Kik and RIM, suspending and then removing Kik Messenger from BlackBerry App World and commencing this lawsuit, including a meritless patent infringement claim which RIM knew had no realistic chance of success."
Kik portrays the suit as a classic case of Goliath picking on the poor small startup: "RIM employed a 'bully' like strategy, while Kik attempted to appease RIM...".
Interestingly, in the statement of defence Kik asserted that Ted, the CEO of Kik, did not have access to the BlackBerry Messenger (BBM) source code while he worked at RIM's BBM team as a Project Coordinator. Kik also denies that Ted had access to RIM's development plans, market research, and other internal reports related to BBM while working as part of RIM's BBM team, as RIM had alleged in its statement of claim. It'll be very interesting to see exactly what documents Ted had access to or potentially had access to while working as part of RIM's BBM team, and whether any of them led to his decision to develop a cross-platform instant messaging client in late 2009.
As with most lawsuits, the truth will come out during discovery and at trial, and will probably fall somewhere in between the allegations made in RIM's statement of claim and Kik's statement of defence.
Sunday, January 30, 2011
Stoddart also indicated that she wants to strengthen PIPEDA, the Personal Information Protection and Electronic Documents Act. With PIPEDA facing a mandatory review by Parliament this year, it is likely that at least some legislative change will take place. In a future post I'll explore some of the possible changes to PIPEDA.
Friday, January 21, 2011
On Thursday, the Supreme Court of Canada released Celgene Corp. v. Canada, 2011 SCC 1 and clarified the law on the scope of the Patented Medicine Prices Review Board’s price‑regulating and remedial authority. At issue is the meaning of the phrase "sold in any market in Canada".
Celgene owns a Canadian patent on the drug Thalomid and distributes it in Canada under the Special Access Programme ("SAP"). Under ordinary commercial law definitions as used in other patent cases relating to infringement (such as Dole Refrigerating and Domco Industries), Thalomid would be considered "sold" in the US: the medicine is packed in the US and shipped Free on Board (“FOB”) to the requesting doctor in Canada, the invoice was prepared in the US and mailed to Canada, payment is in U.S. dollars and is mailed to Celgene in the US, no Canadian taxes are paid, and the drug is never redistributed in Canada.
However, the Patented Medicine Prices Review Board concluded that Celgene’s Thalomid sales to Canadians pursuant to SAP were "sold in any market in Canada" and fell within both its authority for price investigation and its related remedial powers.
In siding with the Board and rejecting the technical commercial law definition advanced by Celgene, the Supreme Court recognized that the mandate of the Board includes balancing the monopoly power held by the patentee of a medicine with the interests of the purchasers of those medicines. In order to comply with that mandate, sales “in any market in Canada” were interpreted to include sales of medicines that are regulated by the public laws of Canada, that will be delivered in Canada, to be dispensed in Canada, and where, in particular, the cost of the medicine will be borne by Canadians — patients or taxpayers, as the case may be. In this case, Celgene's Thalomid SAP sales met that criteria and thus falls within the Board's authority.
As this case shows, defining the meaning of a word in a piece of legislation is a complex issue - even a simple word like "sold" may have different meanings even within the same piece of legislation. If you are reading a piece of legislation concerning an issue that is important to your business, be sure to consult a lawyer for advice.
Monday, January 17, 2011
Since early December, the Parliamentary Legislative Committee on Bill C-32 has invited Canadians to provide their views on the bill. The Committee has set the following parameters for submissions from interested Canadians:
In order for briefs on Bill C-32 to be considered by the Committee in a timely fashion, the document should be submitted to the Committee's mailbox at [email protected] by the end of January, 2011. A brief which is longer than 5 pages should be accompanied by a 1 page executive summary and in any event should not exceed 10 pages in length.
Now is the time to speak out about your views on copyright reform. Even if you've already written your MP or Minister, do so again before Jan 31.
For a more detailed examination of C-32 and Canadian copyright, see From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda, a book published in October 2010 that includes 20 essays on a wide range of copyright reform issues. The book is available in paper version or as a free Creative Commons licenced download.
Write the legislative committee and let your views be known by emailing the Committee's mailbox at [email protected] before Jan 31. If you've always thought copyright laws should be reformed, now's your chance to get your wish. Below is my submission to the committee; you may use all or part of it in your submission as you wish:
Dear Legislative Committee on Bill C-32 (CC32),
I write to you with regard to Bill C-32, An Act to Amend the Copyright Act. As a Canadian, an author and a consumer, I am both a content creator and a consumer of content. However, I am deeply concerned with Bill C-32 in its currently form as it fails Canadians.
Firstly, the Bill’s approach to digital locks is must troublesome. The Supreme Court has stated in CCH that fair dealing is a user’s right, a consumer’s right, and fair dealing is a required and necessary part of a just and democratic society in its exercise of criticism, education, and news reporting. Yet under Bill C-32, any copyrightable work protected by a digital lock trumps all other copyright rights, including all fair dealing and consumer rights. The digital lock provisions must be amended to ensure that it is only a violation of copyright to circumvent a digital lock when the underlying purpose and intent is to infringe copyright. This approach, which has been adopted by countries such as New Zealand and Switzerland, would ensure that the law could be used to target clear cases of commercial piracy but that individual consumer and user rights are preserved. This position retains legal protection for digital locks and still complies with the WIPO Internet treaties but ensures that digital locks do not trump all other copyright rights by preserving fair dealing and consumer rights.
Secondly, extending the private copying levy to iPods and other devices should not be considered. There has been criticism about the cost of administering the levy, the fairness of how the levy is distributed to Canadian artists, and what Canadian consumers are getting in return for paying the levy. Rather than expanding the levy, the government should phase out the levy and instead commit to continued funding for Canadian artists and programs via existing grant programs.
Thank you for considering the views of this concerned Canadian, content creator, and consumer.
Wednesday, January 12, 2011
From the documents filed at the court earlier this week, it's likely that the hearing will be heard in Ottawa in May of this year, and a decision should be rendered before the end of 2011. Depending on the appeal decision, we might see the Supreme Court tackle this issue in 2012.
Thursday, January 06, 2011
Depending on the employer-employee relationship, either the employer or the employee may legally claim ownership of the invention. Just because the employee works at the candy store does not automatically entitle the candy store to claim ownership of the new way to make chocolate.
Many factors of the employment relationship must be considered, including the employment agreement, the nature of the job, how the invention was made, and many other factors. In such situations, it's important to consult an intellectual property lawyer to determine who is entitled to claim the invention and to apply for a patent covering the invention.