The purpose of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (BIA) is to relieve an honest and unfortunate debtor of their debts and liabilities. A discharge from bankruptcy releases the insolvent debtor from pre-bankruptcy debts or liabilities provable in bankruptcy subject to certain exceptions.^[1]

An exception to this rule is s. 178(1)(e) relating to “any debt or liability resulting from obtaining property or services by false pretences or fraudulent misrepresentation”.^[2] Where the exception applies then such debt or liability is not released, and continues to remain enforceable against the debtor after bankruptcy.^[3]

A successful claim . . . [more]

Continuing my review of patent infringement proceedings in Federal Court, I will look at how cases actually move through the court. Focusing on patent infringement cases started in 2017, 2018 and 2019 (but excluding proceedings under the PM(NOC) regulations), for this group of about 140 cases, a statement of defence was only filed in about 75% of cases. In my last column (see ), my review suggested that about half of the cases were resolved in less than two years, typically by way of settlement or discontinuance.

In the 75% of cases where a defence was filed, the median time . . . [more]

The broad powers of the Canadian Radio-television and Telecommunications Commission (CRTC) were reinforced in the CRTC’s Compliance and Enforcement Decision CRTC 2020-196.

In the course of investigation of numerous complaints in relation to a short message service (SMS) phishing scam the person designated by the CRTC under Canada’s Anti-spam Law (CASL) (the “investigator”) issued a notice to produce to Hydro-Québec in relation to 10 service addresses and customer accounts.

Hydro-Québec is not the source of the SMS messages under investigation It is merely an innocent third party that has files that the investigator wants to review to assess the service, . . . [more]

To address the growing problem of trade secret theft hurting Canadian businesses and innovators, the federal government needs to consider a major legislative reform to its existing IP laws. It is time to start thinking about passing a federal Canada Trade Secrets Act.

The idea of a legislative answer to the problem of trade secret theft in Canada is not new. The Alberta Law Reform Institute proposed model legislation in 1986. The Uniform Law Conference of Canada did the same in 1987. Although these early model laws were for adoption by the provinces, they could easily be . . . [more]

I wish to consider two copyright initiatives currently underway in Canada and the United States, as they bear on changes in intellectual property law, and hold lessons for my efforts to increase public access to research and scholarship. Researchers are identified as a concerned party in the Canadian instance, while the American example, if tangential to scholarly publishing, still raises questions about copyright today that only serve to encourage my own thinking about copyright reform.

On July 16th, 2021, the Government of Canada issued A Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things on . . . [more]

I looked at all the patent infringement cases started in the Federal Court over a three-year span 2017 to 2019. There were about 140 cases in this group of which about 24% are still pending today including four waiting on trial decisions and five with trials scheduled in 2022. Of the 140 cases, nine have gone to trial.

The following chart tracks the number of active cases from the original 140 that were still active in six month increments. Note that this is somewhat subjective and is based on what appears to be resolution on the merits rather than the . . . [more]

Owners of copyright in movies struggle with large numbers of infringements in which unauthorized copies of their works are uploaded to peer to peer file sharing services such as BitTorrent.^[1]

The Federal Court of Appeal has noted that a solution to mass-copyright infringement is for a single creator to pursue a large number of infringers.^[2]

Despite the limitations of the Copyright Act for individual non-commercial infringements^[3] and the limitations under current copyright law on authorization, the Federal Court of Appeal was prepared to allow a reverse class-action to proceed in which a plaintiff claims numerous parties conducted . . . [more]

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]