Canada updates

Healthcare & Life Sciences

Contributed by Smart & Biggar
Amended PMNOC Regulations: second anniversary update
  • Canada
  • 16 October 2019

The amended Patented Medicines (Notice of Compliance) Regulations, which came into force in 2017, heralded significant changes to the landscape for pharmaceutical companies in Canada. Among other changes, the amendments ended dual litigation and provided innovators with a right of appeal. This article provides an update as of the second anniversary of the amendments.

Innovators commence court challenges regarding recent amendments to Patented Medicines Regulations
  • Canada
  • 16 October 2019

The recent amendments to the Patented Medicines Regulations have been the subject of two court challenges launched by groups of innovative pharmaceutical companies – one in the Quebec Superior Court and the other in the Federal Court. The applicants before the Quebec court brought a constitutional challenge to the Patented Medicine Prices Review Board provisions of the Patent Act and the regulations, while the applicants before the Federal Court challenged the validity of the amending regulations.

Market access: biosimilars no longer reviewed by CADTH
  • Canada
  • 18 September 2019

The Canadian Agency for Drugs and Technologies in Health (CADTH) recently released Issue 8 of its Pharmaceutical Reviews Update announcing revisions to its Procedure and Submission Guidelines for the CADTH Common Drug Review, among other things. The update also announced that the CADTH will no longer review biosimilars through the Common Drug Review or the pan-Canadian Oncology Drug Review.

Countdown begins: getting ready for new patented medicines pricing regime
  • Canada
  • 18 September 2019

The long-awaited amendments to the Patented Medicines Regulations were recently published in Part II of the Canada Gazette. Major changes include the introduction of three new price regulatory factors and a revised schedule of reference countries. Although the new law will not be in force until 1 July 2020, there are immediate implications.

Canada releases final amendments to patented medicines pricing regulations
  • Canada
  • 11 September 2019

Health Canada recently announced the final amendments to the Patented Medicines Regulations. The amendments – which represent the first substantive revision to the regulations since their introduction in 1987 – are a significant departure from the existing framework and include new price regulatory factors, updated reference countries and changes in reporting requirements.


Insurance

Contributed by Theall Group LLP
Ontario Court of Appeal: insured's failure to provide up-to-date address not breach of duty to cooperate
  • Canada
  • 02 July 2019

The Ontario Court of Appeal recently reconfirmed that an insured's duty to cooperate with defence council appointed by its insurer is not subject to a standard of perfection. This case serves as a strong reminder that a breach of the duty to cooperate must be substantial. It shows that, in practice, without real consequences arising from an insured's conduct, there can be no substantial breach of the duty to cooperate.

Coverage 'thrilla' in Manila – court finds underinsured endorsement provides worldwide coverage
  • Canada
  • 25 June 2019

A recent Alberta Court of Queen's Bench decision demonstrates that policyholders must carefully consider the interplay between an insurance policy and its endorsements. One consideration is the distinction between endorsements that provide standalone coverage and those intended only to modify an existing policy's terms. However, most important is the overarching principle that any limitations of coverage should be clearly stated.

Ontario court rejects well-established rules for interpreting insurance policy exclusions
  • Canada
  • 14 May 2019

The Ontario Superior Court of Justice recently concluded that insurance policies should be interpreted differently when multiple insurers are involved. This decision runs contrary to the basic rules of contractual interpretation and conflicts with well-established precedent. If followed, it could lead to commercially unreasonable results and erode the benefits of coverage available to insured parties.

Injury claim between cohabiting family covered by homeowner's policy despite household exclusion
  • Canada
  • 07 May 2019

An Ontario court recently found that a personal injury claim by a daughter against her mother was covered by homeowner's insurance. While the insurance policy contained an exclusion for claims arising from injury to "any person residing in [the] household", the court concluded that the daughter was a tenant under the policy and therefore the exclusion did not apply. This case serves as a reminder that policyholders' intentions when purchasing insurance can be critically important.


Intellectual Property

Contributed by Smart & Biggar
Amended PMNOC Regulations: second anniversary update
  • Canada
  • 14 October 2019

The amended Patented Medicines (Notice of Compliance) Regulations, which came into force two years ago, heralded significant changes to the IP landscape for pharmaceutical companies in Canada. Among other changes, the amendments ended dual litigation and provided innovators with a right of appeal. This article provides an update as of the second anniversary of the amendments.

Innovators commence court challenges regarding recent amendments to Patented Medicines Regulations
  • Canada
  • 14 October 2019

The recent amendments to the Patented Medicines Regulations have been the subject of two court challenges launched by groups of innovative pharmaceutical companies – one in the Quebec Superior Court and the other in the Federal Court. The applicants before the Quebec court brought a constitutional challenge to the Patented Medicine Prices Review Board provisions of the Patent Act and the regulations, while the applicants before the Federal Court challenged the validity of the amending regulations.

Countdown begins: getting ready for new patented medicines pricing regime
  • Canada
  • 16 September 2019

The long-awaited amendments to the Patented Medicines Regulations were recently published in Part II of the Canada Gazette. Major changes include the introduction of three new price regulatory factors and a revised schedule of reference countries. Although the new law will not be in force until 1 July 2020, there are immediate implications.

Canada releases final amendments to patented medicines pricing regulations
  • Canada
  • 09 September 2019

Health Canada recently announced the final amendments to the Patented Medicines Regulations. These amendments represent the first substantive revision to the regulations since their introduction in 1987 and are a significant departure from the existing framework. The amendments include new price regulatory factors, updated reference countries and changes in reporting requirements.

Canada nears end of project to modernise patent, trademark and industrial design laws
  • Canada
  • 02 September 2019

Canada's recent accession to the Patent Law Treaty marks the near completion of its long and ambitious journey to modernise its patent, trademark and industrial design laws and harmonise its IP laws with its most important trading partners worldwide. As a result of the recent and upcoming changes, Canadian businesses and right holders alike can expect a more consistent and level playing field for securing IP rights.


Litigation

Reference re Environmental Management Act (British Columbia): one step forward for Trans Mountain
  • Canada
  • 09 July 2019

A recent British Columbia Court of Appeal decision is significant because it has removed (for now at least) one of the barriers to the development and construction of the Trans Mountain Expansion Project. It has also provided some clarity on the roles that the federal and provincial governments may properly play in the regulation of interprovincial pipelines and, more broadly, in the complex area of environmental regulation.

Alberta judge dismisses case against police officers on grounds of reasonable force
  • Canada
  • 02 July 2019

A Court of Queen's Bench of Alberta judge recently dismissed a case against police officers and the chief of the Edmonton Police Service in its entirety, concluding that the use of force by the defendants did not exceed what was reasonably necessary for the plaintiff's arrest. The case is significant for the court's analysis of forward-looking infrared video evidence, treatment of a prior judicial decision in related criminal proceedings and analysis of the physical force used by police officers to effect an arrest.

Throwing an egg at someone: Ontario Superior Court addresses hatching of new legal test
  • Canada
  • 25 June 2019

Imprecision in identifying the risks of driving influences how insurers assess the value of automobile insurance. A recent Ontario Superior Court of Justice decision reminds insurers and insured persons how difficult it can be to properly assess and categorise risk at the outset of an insurance relationship; however, it offers little guidance on how the modified causation test should be applied in future cases involving projectiles from motor vehicles.

Section B benefits require compliance with independent medical examination protocol
  • Canada
  • 18 June 2019

Can an insurer deny all Section B benefits if an insured agrees to attend an independent medical examination on conditions that conflict with the examining medical practitioner's protocol? The Alberta Court of Queen's Bench recently considered this question and answered in the affirmative. While the decision was specific to Section B claims, the broader takeaway is equally instructive: relying on the clear terms of a policy does not necessarily impugn the duty of utmost good faith.

Ontario Court of Appeal clarifies overlapping policies containing "other insurance clauses"
  • Canada
  • 11 June 2019

The Ontario Court of Appeal has clarified its application of the Supreme Court's decision in Family Insurance Corp v Lombard Canada Ltd in instances of overlapping insurance policies with "other insurance clauses" covering the same loss. The court determined that the analysis in instances of overlapping coverage comes down to whether there was overlapping coverage and whether the insurers intended to limit their obligation to contribute, and by what method and in what circumstances, in relation to the insured.