An international agreement signed by Canada and 16 other countries is widely expected to simplify and speed up the patent prosecution process while yielding significant cost savings to patent applicants at a time when intellectual property has become the backbone of innovative companies.
Canada
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New trial ordered in the notorious case of Guy Turcotte
When the Quebec Court of Appeal ordered a new trial in the notorious case of Guy Turcotte, the former cardiologist who was found not criminally responsible due to a mental disorder in the 2009 stabbing deaths of his two young children, it took the exceptional step of overturning a verdict largely based on a ruling that was not yet rendered by the nation’s highest court, note legal experts.
The Quebec Court of Appeal, relying on guidance provided by the Supreme Court of Canada in R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 SCR 575 issued five months after Turcotte’s murder trial, held that Quebec Superior Court Justice Marc David’s instructions to the jury were “deficient, which necessarily had a major impact on the verdict.”
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Tug of war – Canadian labour under seige
When the final tally was counted, the labour movement could be forgiven for heaving a sigh of relief. The Senate this week amended, some say eviscerated, legislation passed by the House of Commons that would have given organized labour another sound reason to believe it is under siege.
This time the Conservative government would have under the auspices of accountability and transparency forced unions to disclose financial information to tax authorities. Other entities that too receive favourable tax treatment were inexplicably exempted from the disclosure obligations. Organized labour could be forgiven for feeling that its capacity to flex its muscle is being thwarted as it helplessly watches the federal government trying to systematically strip elements that once made it a force.
Provincial governments across the country too are following suit. Many have enacted legal obstacles to make life difficult for labour. “It’s the age of conservatism,” told me Ronald Pink of Pink Larkin, a law firm from the Atlantic Canada that actually boasts it pays heed to social justice. “We are turning back the clock 50 years on things we fought to achieve.”
Others see matters differently.
What follows is a look at legal developments that could shape the Canadian labour landscape for years to come.
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Workplace privacy: “People don’t understand it”
Workplace privacy, an issue few seriously thought about even a decade ago, has become a conundrum for employers. The ubiquitous presence of mobile technology, the explosive evolution of social media coupled with shifting and seemingly contradictory attitudes towards privacy as well as an evolving legal landscape have left in-house counsel in a quandary. Even outside of work, questions linger around the scope of employee privacy and the extent to which employers can keep tabs on employees.
No wonder then when Borden Ladner Gervais LLP recently ran a seminar on workplace privacy in Toronto in the wake of a much publicized Supreme Court of Canada ruling that has divided privacy lawyers over its significance, the turnout out was nearly twice as much as expected.
“Privacy is on people’s minds,” says Robert Weir, an employment lawyer who led the seminar. “People don’t understand it, don’t get it.”
Categories: Business, Canada, Canadian Charter, Features, Legal Practice Management, Privacy, Supreme Court of Canada -
Tough new anti-corruption laws in the horizon
Canadian companies who paid little heed to anti-bribery compliance can no longer afford to be complacent following proposed amendments that will beef up Canada’s anti-corruption laws and bring it somewhat in line with jurisdictions such as the United States and the United Kingdom.
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Canada’s tough stance on dirty money
New anti-money laundering regulations introduced to demonstrate Canada’s tough stance on dirty money to international authorities will require reporting entities to spend more money, resources, and time to be in compliance, according to experts.
Published in mid-February in its final form in the Canada Gazette, the amendments to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Act) are meant to address several key failings identified by the Financial Action Task Force (FATF), an international body established in 1989 that sets standards for anti-money laundering (AML) and anti-terrorist financing (ATF) activities. In 2008, FATF found that Canada, a founding member, was “non-compliant” on preventative measures such as customer identification and due diligence to combat money laundering.
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Canada’s privacy commissioner calls into question ombudsman model
On the eve of a statutory five-year review of the legislation governing federally-regulated private-sector organizations, the Privacy Commissioner of Canada is openly calling into question the effectiveness of the ombudsman model to regulate private-sector practices for the protection of personal information in light of the recent spate of high-profile data breaches that have compromised the personal information of Canadians.
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Class actions create ethical minefields
Class action ethics, an issue barely broached by academic circles, the legal profession and even by regulatory authorities or bar associations, has now surfaced following a series of rulings that underscore the tension between the singular nature of class action litigation and the traditional position that ethical guidelines governing single plaintiff proceedings also apply to class actions.
In the absence of rules of professional conduct tailored for class action litigation, the courts have begun filling in the gap and providing guidance, albeit on a case-by-case basis, on the ethical minefields that line the class action landscape, the latest of which was Smith Estate v. National Money Mart Company, 2011 ONCA 233, in which the Ontario Court of Appeal voiced concerns the courts have over an uncontested motion for class counsel fees in the face of an adversarial vacuum.
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Top court overturns two decisions by Quebec Court of Appeal in the space of a week
It should come as no surprise if the Quebec Court of Appeal is nursing bruised egos. In the space of a week, the nation’s top court overruled two decisions by the Quebec Court of Appeal.
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News roundup: Tainted water, a falling-tree fatality and a lawyer fined for tax evasion
The Minister of National Defence is considering appealing a recent class action ruling that awarded $15,000 to residents of a small town near Quebec City inconvenienced by the contamination of well water by a known carcinogen.
Quebec Superior Court Justice Bernard Godbout ruled that the class action suit launched by the townspeople of Shannon failed to prove that trichloroethylene (TCE), a solvent used on a nearby army base to clean artillery and ammunition, was responsible for abnormally-high cancer rates in the town. Shannon, a community of 2,000 people, is located near the Canadian Forces Base Valcartier, a huge military defence complex.
“The evidence did not demonstrate that it is probable that the spilling of TCE contaminated the groundwater under the municipality of Shannon, making it the cause of an abnormally-high number of cancer cases, disease and other allergic reactions,” Godbout wrote in his judgment.
Justice Godbout found however that the contamination of well water of TCE was an inconvenience to residents and ordered the government to pay compensation of $15,000 to about 300 affected residents who were among the 2,700 present and former residents lending their name to the class-action suit.
“We will review the decision in order to evaluate next steps,” said Minister of National Defence Peter MacKay in a press release.
In August 2006, a 27-year old Quebecer was in the driver’s seat of his parked car when an old poplar tree crashed down onto his vehicle during a violent storm, and killed him.
A coroner’s report on Gabriel Rossy’s death confirmed the tree that fell on him was found to be 90 per cent rotten and had been “dangerous” for at least one or two years.
His family sued the City of Westmount for failing to maintain the tree, but a Superior Court judge dismissed the action, saying it was a matter that should be dealt with through the province’s Automobile Insurance Act – a ruling that was overturned by the Quebec Court of Appeal in November 2010 who found that the car had nothing to do with Mr. Rossy’s death.
In a ruling that marked the first the Supreme Court of Canada tackled Quebec’s no-fault insurance plan, the nation’s highest court restored the lower court ruling and dismissed the lawsuit against Westmount. The top court ruled Rossy was using his vehicle as a means of transportation when the accident occurred, and as a result his family must turn to Société de l’assurance automobile du Québec (SAAQ), the provincial automobile insurance board, for compensation.
“This is enough to find that the damage arose as a result of an “accident” within the meaning of the Act and that the no-fault benefits of the scheme are triggered. Therefore, the respondents’ civil claim is barred and they must turn instead to the SAAQ for compensation,” wrote the SCC in a 7-0 decision.
“The Court of Appeal erred in interpreting the Act too narrowly,” added Justice Louis LeBel who penned the decision. “Such an interpretation risks unduly restricting the intended application of Quebec’s no-fault scheme and must therefore be rejected.”
A Montreal lawyer, charged following a Canada Revenue Agency investigation of an art-donation scheme, was fined $840,000 after pleading guilty to a tax evasion charge before the Court of Quebec.
Stéphane Saintonge “voluntarily contravened the Income Tax Act in 2003 by enabling a third party to obtain an ineligible amount of tax deductions for the donation of artwork to the Municipality of Larouche,” said Canada’s Revenue Agency.
The scheme consisted of backdating a series of transactions in order to unduly boost the tax credits claimed, according to the Revenue Agency.
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Anti-SLAPP: Will Ontario follow Quebec’s lead?
A free-standing statute with focused remedies such as an expedited review process and a statutory recognition of qualified privilege anchor a series of comprehensive recommendations made by a blue-ribbon panel of legal experts who are calling on the Ontario government to enact legislation to crack down on strategic lawsuits against public participation, otherwise known as SLAPPs.
In the wake of rising concerns over the growing use of litigation to silence critics who speak out on matters of public concern, notably in environmental disputes, the advisory panel appointed by the Attorney General of Ontario recommends new legislation, distinct from existing rules, that would “help to encourage” courts to apply remedies to protect expression on matters of public interest from undue interference.
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Anti-SLAPP – A look at Quebec developments
Barely three weeks after a Quebec judge rendered a landmark ruling that dismissed a $150,000 action after it was held to be a strategic lawsuit against public participation, otherwise known as SLAPPs, a national organization approved a Model Act aimed at reinforcing existing remedies to deter abusive lawsuits.
In an eagerly awaited judgment, Quebec Superior Court Justice Danielle Turcotte found that a defamation suit launched by Les Constructions Infrabec Inc. against a citizen who asked questions at a municipal council meeting was “motivated by an attempt to intimidate,” marking the first time that a ruling has applied an anti-SLAPP bill sanctioned by the Quebec government on June 2009.
Only Quebec has anti-SLAPP legislation. In April 2001, British Columbia enacted anti-SLAPP legislation but it was short-lived as it was repealed five months later. Anti-SLAPP bills were also introduced in New Brunswick in 1997 and in Nova Scotia in 2003, but were never passed.
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News roundup – Alcoa charged, accountant sues tax man, & slow justice
Following an investigation by Transport Canada, the world’s leading producer of aluminum has been charged with two counts of failing to ensure the health and safety of a man who died in an accident at the Alcoa smelter in Baie Comeau, Quebec, some 400 km northeast of Quebec City.
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Legal community craved guidance in real estate dispute
When the Commissioner of Competition recently settled a long-standing abuse of dominance case against the Canadian Real Estate Association, it likely paved the way for a dramatic overhaul in the way that residential property is bought and sold, allowing Canadians to choose services à la carte from real estate agents.
But the settlement, approved by 97 per cent of nearly 100 real estate boards across Canada representing approximately 96,000 real estate agents and brokers, has somewhat disappointed some in the legal community who are craving for more guidance in abuse of dominance cases, particularly since significant amendments were introduced to the Competition Act in 2009.