snIP/ITs Insights on Canadian Technology and Intellectual Property Law

Monthly Archives: February 2015

Canadian Courts Refuse to Settle for Weak Privacy Rights: “Imperial Oil Limited v Alberta”

Posted in Privacy

Overview

Last week, the Supreme Court of Canada (“SCC”) dismissed leave to appeal the Alberta Court of Appeal (“ABCA”) decision in Imperial Oil Limited v Alberta., thereby endorsing the ABCA’s approach to settlement privilege in the context of applications under the Freedom of Information and Protection of Privacy Act (“FOIPP”).[1] Settlement privilege is alive, well, and strongly protected in Alberta, even in the more public regulatory context, as long as parties fall within the exceptions set out in ss. 16 and 27 of FOIPP.Continue Reading

Bill C-13: Lawful Access and the Relationship Between Organizations, Cyber-bullying and the Protection of Privacy Rights

Posted in E-Commerce, Privacy, Social Media

On December 9, 2014, Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act (Act) – also known as the Protecting Canadians from Online Crime Act –, received the royal assent. The Act will come into force on March 9, 2015.

The Act deals with the serious issues of online bullying, harassment and non-consensual circulation of intimate images and aims the protection of Canadians from cyber-bullying and other forms of Internet exploitation.

Significant amendment to the Criminal Code

The Act notably brought two … Continue Reading

PHIPA Does Not Preclude the Recourse to Common Law for Health Privacy Violations

Posted in Privacy, Technology License Agreement

Facts

‘‘With the click of a mouse, personal health records can be accessed by those who have a legitimate interest in properly treating a patient – or they can be accessed for an improper purpose.’’

These were the opening words of the Ontario Superior Court in the case of Hopkins v. Kay[1] where Representative Plaintiffs sought to bring a class action suit against a hospital and other defendants, alleging that approximately 280 patient records of the Peterborough Regional Health Centre (the ‘‘Hospital’’) were intentionally and wrongfully accessed by the Hospital’s staff and others.

The Plaintiffs based their claim on … Continue Reading

Mere Compliance With Privacy Requirements By Corporations may no Longer be Enough

Posted in Privacy, Technology License Agreement

Introduction

The Office of the Privacy Commissioner of Canada (‘‘OPC’’) recently published a research paper entitled ‘‘Privacy and Cyber Security: Emphasizing privacy protection in cyber security activities’’ in which are outlined the common interests and tensions between privacy and cyber security. The report sets out key policy indications with a view to generating dialogue on cyber security as an important element of online protection, while acknowledging that cyberspace governance is a global issue.

Context

The OPC bases its report on the following factual premises. As technologies facilitating access to the Internet have become increasingly entrenched in everyday life, … Continue Reading

U.S. regulators review brokerage cybersecurity, provide guidance

Posted in Data Breach, Regulatory Compliance

Earlier this month, the U.S. Securities and Exchange Commission (“SEC”) and the Financial Industry Regulatory Authority (“FINRA”) each released reports addressing cybersecurity. FINRA’s report targeted its broker-dealer members, and the SEC’s report targeted broker-dealers and investment advisers, but the twin reports provide a roadmap to cybersecurity for financial market participants generally, both in the US and Canada.

There can be no doubt that cybersecurity is top-of-mind for those regulating the Canadian financial market. For example, the Canadian Securities Administrators recently published CSA Staff Notice 11-326 – Cyber Security in which it stated “[s]trong and tailored cyber security measures are an … Continue Reading

Canada Patented Medicines: Federal Court of Appeal Confirms Mootness of Innovator Appeals after Generic Marketing Authorization is Granted

Posted in Intellectual Property, Patents

“Asking a court to prohibit a notice of compliance after it has issued is like asking someone to close the barn door after the horses have escaped.”

With this analogy, the Federal Court of Appeal in Janssen Inc. v. Teva Canada Limited, 2015 FCA 36 has confirmed that an appeal from an order dismissing a prohibition application under the PM(NOC) Regulations becomes moot once the generic notice of compliance is issued. The Court dismissed Janssen’s appeal noting that it does not serve judicial economy to hear moot appeals.

In fact, the FCA has only exercised its discretion to hear … Continue Reading

The Latest on Canadian Expert Reports: Ontario’s Highest Court Rejects Notion that Consultations between Counsel and Experts Must Stop

Posted in Litigation

The Ontario Court of Appeal has put to rest any notion that the practice of consultation between counsel and expert witnesses to review draft reports is improper. In its decision in Moore v. Getahun, 2015 ONCA 55 rendered on January 29, 2015, the Court explained that “banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported by and contrary to existing authority”.

The Court observed that consultations between counsel and expert witnesses are essential to ensure that reports comply with the Rules of Civil Procedure and the rules of evidence, address relevant … Continue Reading