2017 was an eventful year in technology law both in Canada and abroad. From a surprise late reprieve from the year’s most anxiously anticipated anti-spam legislative provisions to a decision from the country’s top court upholding a Canadian-issued global order against Google, legislators, regulators and the courts made moves with important implications for technology lawyers, companies and departments in the course of the year.
Here, in no particular order, are some of the year’s highlights as chronicled by McCarthy Tétrault’s bloggers: Continue Reading
As predicted in our 2016 year-end report, 2017 proved to be a busy year for Fintech in Canada, with a number of important regulatory developments. With the dawn of 2018, we look back to summarize some of 2017’s most notable Fintech regulatory developments in Canada, as well as developments to watch for in 2018. Continue Reading
On December 11, 2017, Munchee Inc., a California-based developer of a restaurant app, shut down its initial coin offering (“ICO”) after the Securities and Exchange Commission (“SEC”) issued a Cease and Desist order. SEC Chairman Jay Clayton subsequently issued a statement highlighting the SEC’s general concerns with cryptocurrencies and ICOs. The order and Chairman Clayton’s statement shed new light on whether a token issued in the context of an ICO is a security. Continue Reading
Some would say keeping a software license alive by an injunction is like requiring specific performance of a contract – something courts don’t like to do. However, a recent Ontario decision appears to have done about just that, by relying on its discretion to grant “terms” according to Ontario Rule 37.13(1) in extending an interim injunction for six months, despite the plaintiff failing to justify its request for an interlocutory injunction to trial. Continue Reading
One of the essential and recurring challenges of regulating unlawful conduct on the Internet—be it child pornography, harassment, fraud, data theft, content piracy, or otherwise—is identifying who is responsible.
Frequently, one can identify an IP address that is (or may be) a target of interest. IP addresses can be traced to responsible organizations, through publicly accessible registries. However, to complete the chain back to a person generally requires the cooperation of the organization.
Commercial ISPs are in the business of providing IP addresses (and network connectivity) to their customers. So, inevitably, they find themselves on the receiving end of many requests to identify their subscribers.
ISPs in Canada have contractual, regulatory, and legal duties of confidentiality that restrict the disclosure of their customer information. However, these duties are not absolute. Because this information can be necessary to uphold legal rights or to enforce obligations, courts can and do order ISPs to disclose this information. In civil matters, this usually involves a Norwich order.
The case of Rogers v. Voltage deals with the issue of who is liable for the cost to comply with such an order. In particular, the case asks whether historical common law rules providing for reimbursement of third party costs have been displaced by the statutory “Notice and Notice” regime under the Copyright Act. Continue Reading
Ciba Specialty Chemicals Water Treatments Limited v. SNF Inc., 2017 FCA 225, is the Federal Court of Appeal’s latest word on obviousness in patent law. The decision appears to unsettle established approaches to assessing obviousness. For what may be the first time since the Supreme Court’s endorsement of the “inventive concept” approach to evaluating obviousness in 2008, the Federal Court of Appeal by-passed the inventive concept inquiry entirely. The court also held that all dependent claims in the patent were invalid because the independent claim was obvious without reconciling previous Federal Court of Appeal jurisprudence holding that this was legally wrong. Finally, the court split 2-1 on the issue of whether the prior art in an obviousness attack must satisfy the “reasonably diligent search” test, with one judge declining to comment. Continue Reading
Project Jasper is an experiment being done by the Bank of Canada, Payments Canada and R3 to test the viability and feasibility of using Distributed Ledger Technology (“DLT”) as the basis for wholesale interbank payment settlements. This project was launched in March 2016 and has completed two phases. Phase 1 of Project Jasper employed the Ethereum platform as the basis for the DLT, while Phase 2 employed the custom-designed R3 Corda platform. In June 2017, the Bank of Canada issued a report on its preliminary findings from Project Jasper, which were summarized in our previous article. On September 29, 2017, the Bank of Canada, Payments Canada, and R3 released a white paper outlining their detailed findings from Project Jasper. This article elaborates on our previous article based on the findings from the white paper and discusses the next steps for Project Jasper. Continue Reading
In a decision expected to be widely noted by the startup community, the Ontario Securities Commission (“OSC”) approved the first initial token offering (“ITO”, also known as an initial coin offering or “ICO”) in Ontario. The decision released October 17, 2017 comes in the wake of increasing innovation and market activity within the fintech and cryptocurrency space in Canada. Continue Reading
On October 5, 2017, the Nova Scotia Legislature introduced Bill No. 27, the Intimate Images and Cyber-protection Act (the “Cyber-protection Act”, or the “Act”). The Act comes as Nova Scotia’s previous cyber-bullying legislation, the Cyber-safety Act (“CSA”), was struck down in 2015 by the Nova Scotia Supreme Court on constitutional challenge.
UPDATE: The Act has now been passed and has received Royal Assent. It will come into force at a later date, yet to be determined.
The Cyber-protection Act, like the CSA, is notable for making Nova Scotia the first Canadian province to formalize and adopt cyber-bullying legislation. Similar to its predecessor, the Act proposes to create civil remedies to deter, prevent, and respond to the harms of non-consensual sharing of intimate images and cyber-bullying. Continue Reading
The Transatlantic Policy Working Group (“TPWG”), an organization set up by Innovate Finance and some of its partners and which is dedicated to Fintech policy discussion between the United States and United Kingdom, recently published a report entitled The Future of RegTech for Regulators (the “TPWG Report”). RegTech refers to the use of technology to facilitate compliance with regulatory requirements via improved data analytics, reporting, and information governance (please see our previous blog posts on RegTech here and here). These technologies have the potential to help business increase accuracy of their reporting and compliance programs while concurrently reducing costs.
The TPWG Report highlights possible ways in which regulators may approach Fintech solutions for regulatory compliance in the future. Understanding the models behind the approaches adopted by regulators will be key to ensuring that Fintech entities understand the letter and spirit of future regulations.
The key conclusion of the TPWG Report is that regulators should keep an open mind to the different approaches being taken by their counterparts in other countries. There are different models which regulators can follow, which include the “Ecosystem Approach”, the “Digital Financial Infrastructure Approach” and the “Rule and Process Change Approach”. Critical consideration of these underlying models can be important in ensuring that regulation is consistent and strikes the appropriate balance between encouraging innovation and protecting the financial system from risk. Continue Reading