The Federal Court of Appeal recently took the opportunity to clarify the procedure and criteria for determining whether a summary judgment motion is “appropriate”. Even 10 years after the Federal Courts Rules were amended to include summary judgment and trials, the Federal Court of Appeal noted that procedure “is rather unclear”.

In 2009, the Federal Courts Rules were amended to include motions for summary judgment and summary trials. For summary judgment, the rules (see Rule 215) provide that the Court shall grant judgment where the Court is satisfied that there is no genuine issue for trial with respect to . . . [more]

On July 30th, the Supreme Court of Canada issued a decision in York University v. Canadian Copyright Licensing Agency (Access Copyright) that the university and its students were not required to pay the Access Copyright tariff intended to cover royalty payments associated with the distribution of the “readings” assigned in students’ courses at the university. While I have commented on the case more than once since it originated with Access Copyright’s 2013 suit against York, after the university stopped paying such tariffs, the Supreme Court ruling ended up hinging on an important distinction in the Copyright Act’s handling of collective . . . [more]

The Canadian Copyright Licensing Agency (Access Copyright) is a copyright collective meaning that it manages certain rights on behalf of copyright holders. Importantly Access Copyright does not itself hold any of the copyrights that it manages.

York University (York) is Canada’s third-largest university with over 50,000 students and approximately 1,500 full-time faculty members.^[1] York had a license to use some of the works licensed by Access Copyright from 1994 to 2010. Access Copyright applied to the Copyright Board for an interim tariff during a period when renewal negotiations were languishing. York initially complied with the interim tariff but then . . . [more]

In the context of investigation of a complaint under PIPEDA^[1] the Privacy Commissioner of Canada sought a reference to determine several preliminary issues.^[2] The claimant claimed Google violated PIPEDA when certain links to news articles pertaining to him arose in a search using the Google search engine. Google had taken the position that PIPEDA did not apply to Google, either, firstly, since the search service was not a commercial activity within the meaning of Section 4(1)(a) of PIPEDA^[3], and, secondly, if PIPEDA did apply then Google was excused since it was carrying out a journalistic activity . . . [more]

Expert evidence is crucial to patent litigation and the timely preparation and exchange of written expert reports prior to trial is one of most important steps of preparing for trial. Expert evidence is typically introduced on patent claim construction, validity, infringement and on remedies. Having expert evidence found inadmissible can significantly change the stakes at trial.

The Federal Courts Rules include deadlines for the delivery of expert reports, but typically a detailed schedule for the exchange of reports is set by the case management judge in consultation with the parties. The more detailed the schedule for expert reports, the less . . . [more]

On March 29, 2021 the Canadian Radio-television and Telecommunications Commission (CRTC) issued a penalty of $75,000 under Canada’s Anti Spam Law (CASL) against an individual, Scott William Brewer, for what the CRTC described as a “series of high-volume spam campaigns”.

The CRTC alleged violations of S 6(1)(a), the requirement of consent, of CASL.^[1]

The Notice of Violation alleged that Mr. Brewer committed three violations between 2015 and 21018 sending 671,342 commercial electronic messages without the consent of the recipients.

In its investigation the CRTC located no evidence that Mr. Brewer had obtained any consent from any of the recipients. . . . [more]

Allegations of patent infringement are comparatively straight forward when there is one party making and selling the patented product, or performing the patented method in Canada. It gets more complicated when multiple parties are involved in the alleged infringement.

Inducing infringement is well known in Canadian patent law and a defendant can be found liable for inducing someone else to infringe a patent. The three part test for inducing infringement has been summarized, such as in Corlac Inc. v. Weatherford Canada Inc., 2011 FCA 228, as:

1. the act of infringement must have been completed by the direct infringer.

Canada uniquely provides a notice and notice regime by which copyright owners can require an ISP to forward notices of alleged infringement to a suspected typically anonymous internet user claimed to be infringing the owner’s copyright.

Courts describe one of the purposes of the notice-and-notice regime is “to provide copyright holders the information they need in order to bring infringement actions against suspected violators, who will usually be Internet users whose identities are unknown to the copyright holders, but known to the respective ISPs”.^[1]

The Supreme Court has also described a purpose of the notice and notice regime was . . . [more]

The Courts were busy in 2020 with some significant decisions in patent law addressing several substantive issues affecting the enforceability of patent rights in Canada. The following summary focuses on some of these decisions that may be of interest beyond those practicing patent law.

Computer-implemented Inventions – An area of significant an ongoing uncertainty has been the degree to which patents can be granted for software and ‘business method’ inventions. In Choueifaty v. Canada (Attorney General), 2020 FC 837, the Federal Court rejected the approach used by the Canadian Patent Office in reviewing these types of inventions to . . . [more]

Three regulators^[1] issued a joint warning letter to numerous mobile app developers late in November 26, 2020 cautioning the companies to comply with various compliance obligations under Canada’s Anti-Spam Law (CASL), the federal privacy law, the Personal Information Protection and Electronic Documents Act (PIPEDA), and the Completion Act.

The co-operative effort was part of a CASL compliance awareness-raising campaign and the warning letters were directed at businesses involved in making apps available to Canadian consumers. The letter is available online^[2] and reminds the businesses that they have obligations under the CASL-related provisions under CASL, PIPEDA, and the . . . [more]

Looking back on an unusual and eventful year, we can see how IP practitioners worked through the pandemic with all of its challenges. Most statistics show a significant drop in March, April and May of 2020 but by June most trends appear to be back to previous levels.

In the Federal Court and Federal Court of Appeal, where most intellectual property matters in Canada are litigated, the following chart shows a measure of activity in the Court. This is based on the number of documents being filed with the Court and directions/orders being issued – i.e. docket entries – on . . . [more]

During the Covid-19 pandemic scams have not stopped and appear, by many accounts, to be on the rise. As a result, the Canadian Radio-television and Telecommunications Commission (CRTC) has continued its enforcement action under Canada’s Anti-Spam Law^[1] (CASL).

Most recently the CRTC conducted an investigation of Notesolution Inc. doing business as OneClass (OneClass). OneClass is an online educational platform for crowdsourced university course content. OneClass seeks to build a global interactive library for educational content across all levels of education.

The CTRC alleged that OneClass violated several provisions of CASL^[2], namely violation of:

(a) the electronic communications . . . [more]