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Archive for ‘Substantive Law: Judicial Decisions’

Use of Employer Systems for Personal Communications to Legal Counsel – How Should Employer Counsel Deal With “hot” E-Mails?

I made a half-baked comment in response to Omar’s April 4th post on the procedural issues in dealing with the communications that employees have with their legal counsel through employer e-mail systems. This is a post based on some “more baked” thoughts that I plan to incorporate into a book chapter under development.

The thoughts I’ve included are strictly on the procedure for dealing with these “hot” e-mails. I’ll leave the substantive issue about the legitimacy of an employee privilege claim to another day, but will set up the thoughts below by noting that the issue is highly uncertain in . . . [more]

Posted in: Substantive Law: Judicial Decisions

Patentable? the Issue of Software and Business Methods

When should software and business methods be patentable, if ever? Two courts are currently grappling with this very question. In the United States, the Supreme Court is expected to deliver its decision in Bilski v. Kappos within weeks. In Canada, the Federal Court recently heard oral arguments in, Inc. v. The Attorney General of Canada et al, the Amazon 1-Click appeal. Both cases are likely to shape the patent landscape for years to come.

Previous developments

Previous decisions in Bilski and Amazon both conspicuously broke with established patentability requirements and led to the current appeals. Each discarded earlier . . . [more]

Posted in: Firm Guest Blogger, Substantive Law: Judicial Decisions

Disclaimers in Canada

In Canada, under s. 48(1) of the Patent Act, a patentee can disclaim portions of an issued patent if “by mistake, accident or inadvertence, and without any willful intent to defraud or mislead the public,” the patentee has “made a specification too broad, claiming more than that of which the patentee… was the inventor.” Disclaimers can be filed to correct errors in patents and can be used to enhance the validity of existing claims by narrowing the claims based on newly discovered prior art. However, patentees should proceed with caution, as disclaimers filed in the wrong manner, or for . . . [more]

Posted in: Firm Guest Blogger, Substantive Law: Judicial Decisions

“Rolling” Anton Piller Order Set Aside: “John Doe” Action Dismissed

The decision in Vinod Chopra Films Private Limited et al. v. John Doe 2010 FC 387 by Hughes, J. concerns a review of a “rolling” Anton Piller order granted by the Federal Court of Canada in a copyright infringement case to an Indian film production company and its Canadian licensee against various un-named persons who (according to the claim) “deal in counterfeit video recordings.”

Pursuant to Justice Zinn’s Order of January 26, 2010, the plaintiffs seized allegedly counterfeit copies of a film entitled “3 Idiots” from a number of defendants who then sought review of the Order.

An Anton Piller . . . [more]

Posted in: Firm Guest Blogger, Substantive Law: Judicial Decisions

Wit, Dry.

Witty not being an adjective often used to describe legal judgments, it is worthwhile to further highlight a judgment that some might have seen in the Globe and Mail: “Witty judgment wins out in lottery dispute”.

(2009) 98 O.R. (3d) 432 is well worth your time to read, I don’t want to give anything away so I will just add that Justice Quinn makes excellent use of footnotes. . . . [more]

Posted in: Reading: Recommended, Substantive Law: Judicial Decisions

Polygamy Reference: One to Watch

British Columbia, home of Bountiful, the town that boasts a sect of religious polygamists, finally bit the bullet a while back and took steps to clarify the legality of polygamy in Canada. After a false start through criminal charges against two men (see Blackmore v. British Columbia (Attorney General) 2009 BCSC 1299, the province began a reference in the B.C. Supreme Court under the Constitutional Question Act R.S.B.C. 1996, c. 68, s. 1, asking:

a. Is section 293 of the Criminal Code of Canada consistent with the Canadian Charter of Rights and Freedoms? If not, in what

. . . [more]
Posted in: Substantive Law: Judicial Decisions

Supremes Display Tech Ignorance

Someone should do the court a favour and introduce the justices to a few teenagers who might explain the technological facts of life.

That’s the only conclusion that one can draw from reading the transcript of Ontario v. Quon, argued yesterday.

As the New York Post headline put it: Supreme Court justices demonstrate extreme lack of tech savvy. . . . [more]

Posted in: Substantive Law: Judicial Decisions

E-Discovery Case Law Digest Updated

The E-Discovery Canada Case Law Digests (Common Law) have been updated over the weekend. Hosted by LexUM, the Digests, both common law and civil law, are part of the E-Discovery Portal managed by Sedona Canada.

New material relates to: Requests for further production, Demands for particulars, Preservation of evidence, Spoliation, Discovery Plan, Proportion and Marginal Utility, Cost Shifting, Admissibility of Internet Information, Privacy Issues, Third Party Information and Norwich orders, and Anton Piller Orders. . . . [more]

Posted in: Substantive Law: Judicial Decisions

Anonymous Speech

The Ontario Divisional Court is going to hear an appeal of the Warman v Wilkins-Fournier case, in which the issue is whether an internet intermediary (here a blog site) must disclose the names of people alleged to have defamed someone.

The Ottawa Citizen has the story.

The trial decision requiring disclosure is at 2009 CanLII 14054 (ON S.C.)

Both sides are suitably apocalyptic in their predictions of disaster if they lose. (Canadian Civil Liberties Association and CIPPIC intervened against disclosure.)

Those opposing disclosure (on court order) say that whistleblowing and populist activism will be chilled or will dry up if . . . [more]

Posted in: Substantive Law: Judicial Decisions, ulc_ecomm_list

Google Decision From Judge Magi Available Here

The full 111 page decision of Judge Oscar Magi of the Milan Ordinary Tribunal imposing liability on Google was released today and is available here.

Slaw readers may recall that on February 24 Judge Magi imposed six-month sentences (suspended) on three Google executives for allowing the posting on Google Video of a mobile-phone video showing a handicapped youth being harassed by his Turin classmates in September 2006. The company took two months to remove the video, which was posted in Google Italia’s “Most Fun Videos” section and received 5,500 hits before being removed.

“La Rete non è una prateria . . . [more]

Posted in: Substantive Law: Foreign Law, Substantive Law: Judicial Decisions

Moderating Comments and Liability

A recent judgment of the England and Wales High Court, Kaschke v Gray & Anor [2010] EWHC 690 (QB), dealt with a potential libel that occurred in a post on a blog,, that opens its facilities to “Labour grassroots” to “discuss the issues important to them.” As, which has the story, says

Hilton claimed in his defence against the libel charge that, though he ran the site, he did not edit or vet the articles and should qualify for the same safe harbour that was granted to search engines or ISPs.

That safe harbour is granted under . . . [more]

Posted in: Substantive Law: Foreign Law, Substantive Law: Judicial Decisions