On June 14, I gave my annual presentation to the Toronto computer Lawyers’ Group on “The year in review in Computer, Internet and E-Commerce Law”. It covered the period from June 2015 to June 2016. The developments included cases from Canada, the U.S. the U.K., and other Commonwealth countries.
The developments were organized into the broad topics of: Technology Contracting, Online Agreements, Privacy, Online/Intermediary Liability/Responsibility, Copyright, and Trade-marks and Domain names.
The cases referred to are listed below. My slides can be viewed after the case listing. These and many other cases will be added to my 7 volume book on Computer, Internet and E-Commerce Law (1988-2015). Continue Reading
On June 1st, 2016, the new Regulation respecting contracting by public bodies in the field of information technologies (the “Regulation”), which now allows Quebec public bodies greater flexibility to negotiate complex Information Technologies (“IT”) service agreements, came into force . It supplements the Act respecting contracting by public bodies (the “Act” which establishes the legal framework for contracting with public bodies in Québec, including among others the Québec government and its departments, certain Crown corporations, universities, hospitals, towns and municipalities. It applies to contracts and sub-contracts of a value of $1M or above.
The coming into force of the Regulation is a significant and welcomed development as it will allow for greater flexibility in the negotiation and conclusion of IT contracts with public bodies in Québec, in addition to bringing Quebec closer into line with other Canadian provinces in this regard. It follows the public acknowledgement by the Quebec Treasury Board Secretariat (the “Secretariat”) that news rules specific to IT agreements were required in order to increase competitiveness in the procurement process for IT services, lower costs and shorten delays in the execution of IT contracts.
The Regulation generally applies to supply contracts as well as service contracts “which are intended for the acquisition of goods or the provision of services in the field of IT”. The Regulation should apply whenever a significant portion of the value of the contract is to “ensure or enable functions of information processing and communication by electronic means, including the collection, transmission, display and storage of information”.
The highlights of the Regulation are as follows:
- Ability for public bodies to award a contract following a call for tenders involving a competitive dialogue with suppliers or service providers.. The Regulation opens the possibility for a public body to enter into a dialogue with selected bidders to define solutions which each bidder can then use as the basis for its final tender. It can only take place in calls for tenders involving 2 stages.
- Introduction of the concept of total cost of acquisition. The Regulation seeks to provide public bodies with better information with respect to the predictability of costs. In this regard, public bodies can now take into account the total costs of the acquisition of goods to determine the lowest price or adjusted price for the awarding of certain contracts. The total of acquisition includes “costs not included in the tendered price that would be borne by the public body during the useful life of the goods acquired”. These costs must be based on “quantifiable and identifiable elements identified in the tender documents”.
- Adoption of specific rules for task order contracts in the field of IT. The Regulation confirms that public bodies can continue to rely on task order contracts with service providers “when the procurement requirements are recurrent and the number of requests and the rate or frequency at which they are to be performed are uncertain”. The maximum duration for such contracts remain 5 years.
- Contracts for the acquisition of cloud goods or services by mutual agreement. The Regulation introduces new specific provisions with respect to the acquisition of cloud goods and services by public bodies.
- Affirmative action program: The Regulation provides that suppliers, service providers and subcontractors in the field of IT which employ more than 100 persons are required “to have made commitment to implement an affirmative action program that complies with the Charter of human rights and freedoms (chapter C-12) and hold an attestation to that effect issued by the Chair of the Conseil du trésor.” This requirement existed already in the previous set of rules that applied to supply contracts and service contracts with public bodies. It continues to apply only to contracts with government departments and a restricted number of other public bodies (i.e. generally, contracts with Crown corporations, schools and universities, among others, are excluded from the application of this requirement).
- Performance evaluation. Public bodies are required to proceed to a performance evaluation of suppliers and service providers within 60 days of the end of a contract, where such contract has a value of 100,000$ or more. Under the old set of rules applicable to service contracts, such evaluation was required only in where performance had been considered unsatisfactory. In the case of cloud goods or services contracts concluded by mutual agreement, the chief executive officer of the public body must send the performance evaluation to the Centre des services partagés du Québec.
- Electronic submission of tenders. Suppliers or service providers are now authorized to submit tenders electronically. After May 31, 2019, filing of both a paper and an electronic tender by the same bidder will lead to automatic rejection of the bidder.
 CQLR c C-65.1
 At Sections 19-22 of the Regulation.
 At Section 15 of the Regulation.
 At Section 45 of the Regulation.
 At Section 48 of the Regulation.
 At Sections 58- 60 of the Regulation.
 At Sections 79-82 of the Regulation.
 At Section 13 of the Regulation.
Geoff Hall, senior litigator at McCarthy Tétrault, authors the newly published third edition of Canadian Contractual Interpretation Law. The book clearly sets out the principles governing the interpretation of contracts in Canada, particularly in light of the landmark decisions of the Supreme Court of Canada in Sattva and Bhasin.
These two cases – both of which cited the second edition of Mr. Hall’s book, and were successfully argued by litigators from the firm – transformed contractual interpretation in fundamental ways, firstly by recognizing contractual interpretation as a highly fact-driven exercise and secondly by recognizing an organizing principle of good faith in Canadian contract law. The third edition can be purchased here.
This article was originally posted on the Canadian Appeals Monitor Blog on June 2, 2016.
In response to the U.S. Department of the Treasury’s (“Treasury”) July 20, 2015 request for information on online marketplace lending (the “RFI”), Treasury issued its white paper on marketplace lending “Opportunities and Challenges in Online Marketplace Lending” (the “White Paper”) on May 10, 2016. The White Paper outlines the risks and potential of this emerging form of credit, makes specific policy recommendations and identifies certain trends for future monitoring.
The White Paper defines marketplace lending as financial services that use “investment capital and data-driven online platforms to lend either directly or indirectly to consumers and small businesses”. While less developed than in the U.S., Canada also has a nascent marketplace lending industry, composed both of domestic and foreign-based marketplace lenders. The White Paper identifies a number of considerations that will also be relevant to the Canadian market and Canadian regulators. Continue Reading
On May 6, 2016, the Supreme Court of British Columbia handed down its decision in Nazerali v. Mitchell, 2016 BCSC 810, ordering $1.2 million in damages in favour of the plaintiff, Natel Nazerali, who claimed he was defamed by Mark Mitchell, the principal author and publisher of www.deepcapture.com (the “Website”).
This case highlights numerous interesting nuances about defamation law when the Internet is involved; but notably, this case appears to suggest that the Court will not hesitate to grant a permanent injunction, even against big players like Google and GoDaddy.com, for permitting online searches that lead to defamatory content when the defendant publisher is foreign and likely to resist enforcement of a monetary judgment against them. Continue Reading
The Competition Bureau announced on May 19, 2016 that it will launch a market study focused on how innovation in the fintech sector is impacting consumers and businesses, with the results intended to be published in the spring of 2017, seeking to determine whether there is a need for “regulatory reform to promote greater competition while maintaining consumer confidence in the sector.”
The announcement cites a report indicating that Canada appears to be lagging other countries in adoption of fintech as one of the reasons for deciding to study the financial services industry. Continue Reading
Last year we wrote about a trilogy of Federal Court decisions relating to Eli Lilly’s erectile dysfunction (ED) drug CIALIS® (tadalafil). While Lilly was successful in obtaining a prohibition order in the first proceeding, its latter two applications were dismissed. Mylan appealed the first order, and the Federal Court of Appeal (FCA) recently released its decision in Mylan Pharmaceuticals ULC v. Eli Lilly Canada Inc., 2016 FCA 119 dismissing Mylan’s appeal.
The FCA’s decision affirms the view that obviousness and obviousness-type double patenting validity challenges require distinct analyses, and that a patent’s disclosure cannot be referenced to vary the scope or ambit of its claims where those claims are unambiguous. Continue Reading
A recent decision of the Federal Court in Allergan Inc. v. Apotex Inc. et al. (2016 FC 344), relating to the drug Gatifloxacin, appears to have regressed the issue of expert “blinding” in patent cases. Expert “blinding” is a relatively recent trend in patent litigation where a litigant intentionally “blinds” its expert witness to certain issues and materials in an effort to afford their opinions a higher degree of credibility. In the Gatifloxacin decision, the Court appears to have endorsed expert “blinding” in patent cases as not only de rigueur but, perhaps necessary; while other recent decisions of the very same Court have seriously questioned the value of the recent trend.
In the Gatifloxacin case, the Federal Court was persuaded by Apotex that Allergan’s expert evidence was flawed by not being properly “blinded”. Allergan’s experts had reviewed Apotex’s Notice of Allegation, as well as the patent-in-suit, prior to preparing their opinions. The Court agreed that the opinions of Apotex’s experts should be preferred over those of Allergen as they were “blinded” from the patent when giving evidence on the common general knowledge, and “blinded” from the parties’ positions throughout.
We recently attended the 18th Biennial National Conference: New Developments in Communications Law and Policy, a national symposium of the Law Society of Upper Canada and the Entertainment Media and Communications Law section of the Canadian Bar Association. This conference is always a stimulating and fascinating opportunity to share thoughts with colleagues in the Canadian communications sector. This year’s event was no exception.
The purchase of a competitor’s trade-mark as an online advertising keyword is not an infringement, according to a recent Federal Court of Australia decision. In making its finding, the Court in Veda Advantage Limited v Malouf Group Enterprises Pty Limited,  FCA 255 relied on evidence that the keywords were not visible to consumers and were selected and provided to Google by the defendant, rather than being used to identify a trade source. However, use of the trademark in a “sponsored link” in relation to the same services as those of the registered mark was held to be an infringement in certain circumstances.