Section Article Round-up
Bias and Baker
The Supreme Court of Canada’s decision in Baker, 25 years ago, was foundational in forging the basis for procedural fairness arguments with a bias component. Sania Chaudhry of Forte Law writes that despite this case being of a Black disabled single mother dealing with some explicitly biased reasons for decision in the immigration context, the Supreme Court of Canada neglected to mention race, gender, or their intersectionality in this decision, only stating that the standards for reasonable apprehension of bias (“RAB”) can vary and that Canada is a diverse nation.
Seeking to strike the proper balance
Finance Minister Chrystia Freeland tabled the eighth budget of the Liberal federal government (“Budget 2024”) on April 16, 2024. Budget 2024 is comprised of eight chapters and three annexes, with the relevant proposed tax measures being summarized in “Tax Measures: Supplementary Information” that includes a Notice of Ways and Means Motion to Amend the Income Tax Act (“ITA”) setting out the specific proposed amendments to the ITA. Terrance S. Carter, Sean S. Carter, Urshita Grover, Theresa L.M. Man, Ryan M. Prendergast, Esther Shainblum, Cameron A. Axford and Martin U. Wissmath of Carters detail the implications for charities and not-for-profit law.
Defining total charitable gifts
The Canada Revenue Agency (“CRA”) released CRA View 2023-1000021E5, dated January 23, 2024, a technical interpretation in which it considered the donation tax credit and the definition of “total charitable gifts” under subsection 118.1(3) of the Income Tax Act (“ITA”). More specifically, the CRA considered the scenario of where a taxpayer had made a $400 charitable gift to a qualified donee in the 2023 taxation year and sought to claim a portion of the gift in the 2023 taxation year and claim the remainder in the 2024 taxation year. Ryan Prendergast of Carters has the details.
Charities need to be in compliance
On March 21, 2024, the Federal Court of Appeal (“FCA”) released its decision concerning Sigma Chi Canadian Foundation v Canada (National Revenue). The fraternal organization (the “Appellant”), a registered charity, appealed to the court from a decision of the Minister of National Revenue (the “Minister”) to revoke the organization’s charitable status. Ryan Prendergast and Urshita Grover of Carters have more.
Charities must follow their own by-laws
An agricultural society that was the beneficiary of an estate terminated the corporate membership of a director for an apparent conflict of interest when her family members sold property of the estate, but the director successfully sued and had her membership reinstated, Carters’ Jennifer Leddy writes. In Dillon v Carp Agricultural Society, published March 28, 2024, the Ontario Superior Court of Justice found the respondent, Carp Agricultural Society (“CAS”) had “breached the rules of natural justice in the manner that it investigated” and set aside the decision to revoke the applicant’s membership.
Duelling definitions
Legal arguments over the meaning of a single term may seem like little more than semantic squabbles to those unfamiliar with insurance law. However, explains Michael Valdez of Stieber Berlach LLP, small interpretative disputes are often at the center of high-value insurance claims.
Clarity on long-tail claims
So-called “long-tail claims,” i.e. claims where the alleged damage spans a number of years, pose various coverage challenges for insurers and policyholders. On February 27, 2024, the Ontario Court of Appeal released its decision in Loblaw Companies Limited v. Royal & Sun Alliance Insurance Company of Canada, where it tried to bring some clarity to some of the material coverage issues that arise with these types of claims. Murray Stieber and Avi Sharabi of Stieber Berlach LLP have more.
Noise oppression
In August 2022, Justice Morgan, of the Ontario Superior Court of Justice, held that a unit owner had not been oppressed notwithstanding he was dissatisfied with steps taken by the condominium board to address his noise complaints. In January 2024, the Ontario Court of Appeal dismissed the unit owner’s appeal, upholding Justice Morgan’s decision. As Avi Sharabi and Leigh Clark of Stieber Berlach LLP explain, his case is instructive for condominium corporations, condominium managers, and their insurers.
The proper approach for judicial review of administrative decisions
The recent decision of Yatar v. TD Insurance Meloche Monnex brings a much-needed addition to the caselaw pertaining to the proper approach for judicial review of administrative decisions. In this case, the Supreme Court of Canada confirmed that statutory rights of appeal limited to one type of question, such as a question of law, does not preclude judicial review pertaining to other, unaddressed questions, such as questions of fact, or questions of mixed law and fact. Stieber Berlach’s Michael Valdez has the details.
We are currently recruiting volunteers to prepare summaries of IP-related decisions on a quarterly basis. If you are interested, please contact Chantal Saunders at CSaunders@blg.com and Kathy Paterson at KPaterson@blg.com.
The following case summaries were submitted for this quarter:
Case summary: Motion to represent corporation denied by FCA
Case summary: Motion to consider dismissed for being with without merit and past due
Case summary: Procedural motions and evidence considerations in patent infringement
Case summary: Federal Court rules on the meaning of an assignor in a copyright infringement action
Case summary: Federal Court rules on amendment of pleadings in copyright infringement action
Case summary: Appeal of CMJ decision results in further documents to be produced
Case summary: Section 64(2) of the Copyright Act applies to moral rights
Case summary: Federal Court upholds order to produce financial statements in Section 8 action
Case summary: Federal Court allows appeal where evidence failed to show use in association with registered services
Case summary: Federal Court clarifies scope of discovery and permissibility of “open list” of allegedly infringed works in coursepack copyright case
Transferring a second person drug submission does not re-trigger PM(NOC) Regulations
Admissibility of fact evidence as to state of the art for obviousness
Case summary: Federal Court decides discovery motions
Case summary: New evidence results in appeal allowed in part in trademark case
Pharma patent litigation case summary
Case summary: Admissibility of reply evidence in copyright proceedings
Case summary: Clarifying document production obligations in simplified actions under the Federal Courts Rules
Federal Court clarifies which consumers are relevant for the confusion analysis in drug-related trademark case
Unopposed motions for default judgement are not automatically granted
Sufficiency Amendments insufficient
Echo cancellation and noise suppression are not the same
Case summary: Questions as to any use of copyrighted materials relevant in discovery
Case summary: Award of costs against counsel personally denied
Case summary: The “Special Circumstances” exception for non-use of trademarks
Case summary: Determining distinctiveness of marks
Case summary: Federal Court rules in favour of plaintiffs in Access Copyright dispute
Case summary: FCA rules change in prescribing practices not required for a finding of induced infringement
Case summary: Unpaid costs awards lead to Order for security for costs
Case summary: Federal Court upholds order striking discovery questions due to generic responses, lack of bias
Case summary: Amendments to Statement of Defence allowed in diabetes drug patent trial for two additional defendants
Case summary: The FCA discusses what constitutes a method of medical treatment
Case summary: The sale of a mere component of a patented combination invention is insufficient to grant the implied right to use the entire combination
Case summary: Unreasonable delays in engaging in litigation result in Statement of Defence being struck
Case summary: Coors retains Miller High Life trademark registrations despite lack of use
Case summary: Case where Federal Court finds PMPRB’s conclusion that a patent “pertained to” a drug reasonable
Managing client expectations with clarity and transparency
In a captivating event, the intricacies of international arbitration were expertly unveiled by Artem N. Barsukov, FCIArb, Partner at Bennett Jones LLP and summarized by Dr. Rupak Sarma, Member at Large of the CBA International Law Section. The session delved into the core principles behind arbitration, explaining its role as a vital aspect of cross-border dispute resolution. Attendees gained insights into the key differences between ad hoc and institutional arbitration, with a spotlight on the growing popularity of institutional arbitration in Canada.
Careful what you wish for
Global Affairs Canada (“GAC”) has provided its first guidance on the application of the economic sanctions in the Special Economic Measures Act (“SEMA”) and regulations and the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) (“JVCFOA”). Canadian and international businesses have long requested practical guidance on several key elements of Canada’s sanctions regime. As Dr. A Neil Campbell, Jonathan O’Hara, William Pellerin, Jamie M. Wilks and Tayler Farrell of McMillan explain, the guidance are likely to have far-reaching impacts.
Why you need a PCRN
Raymond Leclerc, Vice President, Public Affairs of LAWPRO, explains why payment confirmation reference numbers are the only way to have truly irrevocable, secure funds.
Victories and challenges on reproductive rights
The Canadian Bar Association (CBA) Women Lawyers Forum (WLF) has reason to celebrate this International Women’s Day, writes Angela Ogang. The Honourable Mary T. Moreau’s appointment to the Supreme Court of Canada on November 6, 2023, marked a significant milestone in our nation’s history: it was the first time that the highest court in the land had a majority of women justices. But the status quo, especially on abortion rights, is not guaranteed.