Latest updates

Coverage 'thrilla' in Manila – court finds underinsured endorsement provides worldwide coverage
Theall Group LLP
  • Insurance
  • 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.

Canada introduces Bill C-100: step towards ratification of NAFTA 2.0
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • 24 June 2019

In a step towards ratifying the United States-Mexico-Canada Agreement (USMCA), the government recently introduced Bill C-100, entitled "An Act to implement the Agreement between Canada, the United States of America and the United Mexican States", in Parliament. If ratified, the USMCA will replace the North American Free Trade Agreement and will require several changes to Canada's IP laws.

Federal Court dismisses Servier's application for order of prohibition regarding salt patent
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • 24 June 2019

The Federal Court recently dismissed Servier's application for a prohibition order under the pre-amended Patented Medicines (Notice of Compliance) Regulations for Canadian Patent 2,423,825 regarding a perindopril arginine/amlodipine product (Servier's Viacoram). Apotex had alleged that the patent was invalid for obviousness, overbreadth, inutility and insufficiency.

Government publishes new violence and harassment prevention regulations for federal employers
Fasken
  • Employment & Benefits
  • Canada
  • 19 June 2019

The federal government has published the draft Workplace Harassment and Violence Prevention Regulations. The regulations will support the recently passed Bill C-65 and will replace the current workplace violence obligations in the Canada Occupational Health and Safety Regulations, as well as certain related provisions in the Maritime Occupational Health and Safety Regulations and the On Board Trains Occupational Safety and Health Regulations.

Federal Court dismisses Servier's application for order of prohibition regarding salt patent
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 19 June 2019

The Federal Court recently dismissed Servier's application for a prohibition order under the pre-amended Patented Medicines (Notice of Compliance) Regulations for Canadian Patent 2,423,825 regarding a perindopril arginine/amlodipine product (Servier's Viacoram). Apotex had alleged that the patent was invalid for obviousness, overbreadth, inutility and insufficiency.

Court upholds issuance of NON-W letter and cancellation of reconsideration process for Apotex
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 19 June 2019

The Federal Court of Appeal recently affirmed the Federal Court's dismissal of Apotex's application for judicial review of a minister of health decision relating to its Apo-Omeprazole (omeprazole magnesium) delayed-release tablets. The minister had issued a Notice of Non-Compliance – Withdrawal letter in respect of Apotex's abbreviated new drug submission on the basis that the tablets were not bioequivalent to the relevant Canadian reference product.

Canada's Air Passenger Protection Regulations coming into force
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 19 June 2019

Following several rounds and many months of consultations, the government recently announced that the Air Passenger Protection Regulations (APPRs) developed by the Canadian Transportation Agency have been finalised. The APPRs apply to all flights within, from or to Canada, whether operated by a Canadian or foreign airline. Once in effect, the regulations will impose obligations on carriers in cases of tarmac delays, denied boarding and delayed and cancelled flights.

Franchisee or employee in disguise?
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 18 June 2019

Franchising communities in Quebec and elsewhere in Canada have been eagerly awaiting a Supreme Court of Canada decision on whether an unincorporated franchisee operating a two-person cleaning services business in Quebec as part of a cleaning services franchise network qualified as an employee. While the court's ruling may be worrisome to franchisors in certain industries, there are several mitigating factors to consider.

Section B benefits require compliance with independent medical examination protocol
  • Litigation
  • 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.

Top 10 changes to Canada's trademark law
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • 17 June 2019

After five years of anticipation, sweeping changes to Canada's trademark law have finally come into force. Among other things, Canadian applicants can now file applications in more than 80 countries around the world through a single international application and declarations of use are no longer required to secure registrations.

Prior user rights under recently amended Patent Act
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • 17 June 2019

The Budget Implementation Act 2 has brought about several changes to the Patent Act that affect the scope of protection available under Canadian patents, including a revision of Section 56, which concerns the rights of prior users of patented technologies. However, as many of the Section 56 amendments will require judicial interpretation, the true scope of prior user rights under the revised provision may be unknown for some time.

Discrimination in the hiring process: what remedies are available to candidates?
Fasken
  • Employment & Benefits
  • Canada
  • 12 June 2019

The Superior Court of Quebec has confirmed that the Public Service Commission of Canada has the power to order the hiring of a candidate who has been discriminated against. However, in order to do so, the commission must find that the plaintiff was reasonably the most capable candidate and would have certainly obtained the role had they not been discriminated against.

Procedural decisions under PMNOC Regulations: common validity issues and naming of defendants
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 12 June 2019

In two recent cases, the Federal Court considered procedural decisions in actions under the Patented Medicines (Notice of Compliance) Regulations. In one case, the court ordered that common validity issues in actions relating to Bayer's Xarelto against Apotex and Teva will be heard concurrently. In another case, the court refused to allow the plaintiffs to name additional Teva parties as further defendants in three actions relating to Celltrion's Herzuma, a trastuzumab biosimilar of Roche's Herceptin.

Ontario Court of Appeal overturns ban on online sales of prescription eyewear to Ontario residents
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 12 June 2019

The Ontario Court of Appeal has overturned the Ontario Superior Court of Justice's finding that online sales of prescription eyewear by Essilor Group Canada Inc to Ontario residents violated the Regulated Health Professions Act. The court found that the mere act of delivery did not, in itself, establish a sufficient connection to Ontario so as to bring Essilor's online transactions within the ambit of the act.

Ontario Court of Appeal clarifies overlapping policies containing "other insurance clauses"
  • Litigation
  • 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.

Nice Classification with a trap – Canada introduces class top-up fees with no back door
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • 10 June 2019

With the long-awaited changes to the Trademarks Act and Regulations imminent, brand owners should be excited about Canada's alignment with international trademark standards and the new opportunities that these changes will bring. However, brand owners should be aware that Canada has adopted a unique policy concerning the required filing fees which differs significantly from the general practice of other member countries.

Procedural decisions under PMNOC Regulations: common validity issues and naming of defendants
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • 10 June 2019

In two recent cases, the Federal Court considered procedural decisions in actions under the Patented Medicines (Notice of Compliance) Regulations. In one case, the court ordered that common validity issues in actions relating to Bayer's Xarelto against Apotex and Teva will be heard concurrently. In another case, the court refused to allow the plaintiffs to name additional Teva parties as further defendants in three actions relating to Celltrion's Herzuma, a trastuzumab biosimilar of Roche's Herceptin.

New oncology initiative and Health Canada study on biosimilar drugs
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 05 June 2019

The new pan-Canadian Oncology Biosimilars Initiative aims to ensure appropriate implementation and cost-effective use of therapeutic oncology biosimilars. Separately, Health Canada recently announced that it is collaborating with the Drug Safety and Effectiveness Network on a project to study patients with certain diseases who are taking biologic drugs. The study aims to compare the safety and effectiveness of biosimilar drugs to the reference biologic drug.

Health Canada invites submissions containing high-quality, real-world evidence
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 05 June 2019

Health Canada recently released a notice inviting drug submissions containing high-quality, real-world evidence along with a document providing principles for the collection and evaluation of real-world evidence. A further joint document regarding the use of real-world evidence is expected to be published later in 2019.

Proposed federal changes for training benefits, pay equity and more
Fasken
  • Employment & Benefits
  • Canada
  • 05 June 2019

Budget 2019 proposes a number of employment-related changes focused on supporting and engaging the middle-class workforce. The most significant item in the budget is the announcement of a proposed new Canada Training Benefit, which proposes (among other things) a non-taxable training credit to help cover the cost of training fees for eligible workers aged between 25 and 64 years old.