Latest updates

Franchisees can't have their cake and eat it too: statutory disclosure exemptions have consequences
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 29 October 2019

In recent years, many Canadian provinces have adopted franchise-specific disclosure laws with a view to remedying the inequality of bargaining power between franchisors and franchisees. Subject to certain limited exemptions, franchisors must provide prospective franchisees with full and accurate information in respect of all material facts relating to the franchise business before entering into a franchise agreement, failing which franchisees can bring a claim for rescission and damages against the franchisor.

Updated Manual of Patent Office Practice explains 'due care' standard and more
Smart & Biggar
  • Intellectual Property
  • Canada
  • 28 October 2019

An updated Manual of Patent Office Practice (MOPOP) was recently published, explaining Patent Office administrative and examination practice effective from 30 October 2019. The updated MOPOP provides important information as to how the Patent Office will handle certain aspects of patent practice under the Patent Act and Patent Rules. Most significantly, the updated MOPOP provides details concerning (among other things) the new requirement for the submission of certified copies of priority documents.

Eli Lilly granted leave to add new cause of action for direct infringement absent allegation of direct infringement
Smart & Biggar
  • Intellectual Property
  • Canada
  • 28 October 2019

Eli Lilly was recently granted leave to amend its pleadings to introduce a new cause of action for the direct infringement of claims relating to a new use without including an allegation that the product had been directly infringed. However, the court ordered that all issues relating to the new cause of action must be bifurcated and tried at the quantification phase, after all other issues have been determined.

Eli Lilly granted leave to add new cause of action for direct infringement absent allegation of direct infringement
Smart & Biggar
  • Healthcare & Life Sciences
  • Canada
  • 23 October 2019

Eli Lilly was recently granted leave to amend its pleadings to introduce a new cause of action for the direct infringement of claims relating to a new use without including an allegation that the product had been directly infringed. However, the court ordered that all issues relating to the new cause of action must be bifurcated and tried at the quantification phase, after all other issues have been determined.

Certificate of supplementary protection regime: second anniversary update
Smart & Biggar
  • Healthcare & Life Sciences
  • Canada
  • 23 October 2019

The certificate of supplementary protection (CSP) regime recently celebrated its second anniversary. This article looks back on the previous year and provides an updated summary of approvals, rejections and pending applications, as well as further reminders and tips, including (among others) that it is important to consider the possibility of a CSP early in the drug development and approval lifecycle.

Bonus entitlement on basis of reasonable expectation
Fasken
  • Employment & Benefits
  • Canada
  • 23 October 2019

A recent British Columbia Supreme Court ruling has clarified that even where the terms of a bonus plan expressly state that payment of a bonus is discretionary, an employer's conduct can affect whether the bonus is treated as discretionary on termination of employment. Employers should be aware of, and adhere to, the terms of bonus plans. Further, employers must be mindful of the pattern and history of discretion exercised in awarding bonuses during an employee's employment.

Get ready now: new Patent Rules in force 30 October 2019
Smart & Biggar
  • Intellectual Property
  • Canada
  • 21 October 2019

Two requirements under the new Patent Rules warrant particular attention for new Canadian patent applications and national phase entries: the Patent Cooperation Treaty national phase entry deadline and the requirement for certified copies of priority documents. Applicants should plan now to ensure that applications under the new rules enter the Canadian national phase within 30 months of the earliest priority date.

Foreign prosecution history evidence permitted under Section 53.1 of Patent Act
Smart & Biggar
  • Intellectual Property
  • Canada
  • 21 October 2019

The Federal Court recently released the first decision in which the scope of Section 53.1 of the Patent Act – the so-called 'file wrapper estoppel' provision – was considered. The court's decision suggests that, notwithstanding the clear language of the provision, foreign prosecution histories may be admissible for the purposes of claim construction in certain extraordinary circumstances.

Amended PMNOC Regulations: second anniversary update
Smart & Biggar
  • Healthcare & Life Sciences
  • 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
Smart & Biggar
  • Healthcare & Life Sciences
  • 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.

Thirty-month notice of termination ruling overturned
Fasken
  • Employment & Benefits
  • Canada
  • 16 October 2019

The Ontario Court of Appeal recently reaffirmed that the upper limit for reasonable notice remains 24 months, absent exceptional circumstances. This decision is a reminder of the importance of well-drafted employment contracts, particularly with regard to an employee's entitlements on termination.

Innovators commence court challenges regarding recent amendments to Patented Medicines Regulations
Smart & Biggar
  • Intellectual Property
  • 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.

Amended PMNOC Regulations: second anniversary update
Smart & Biggar
  • Intellectual Property
  • 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.

If it looks like a farm and acts like a farm... it's a farm: farm worker exemption
Fasken
  • Employment & Benefits
  • Canada
  • 09 October 2019

Ontario's Divisional Court recently found that a farm's employees were exempt from the overtime provisions of the Employment Standards Act 2000. The court's decision is now the leading authority on the farm exemption and provides critical clarity to the farming community, which often relies on overtime work to produce agricultural products. It also provides guidance on the interpretation of employment standards legislation.

Upcoming federal elections: employees' right to vote
Fasken
  • Employment & Benefits
  • Canada
  • 02 October 2019

The Canada Elections Act provides that every employee who is an elector is entitled to three consecutive hours off work to vote. With election day looming, employers may be wondering what their obligations are towards their employees. This article sets out those obligations as well as employees' rights in this regard.

What's in a tweet? Employer does not have to pay settlement funds after grievor takes to Twitter
Fasken
  • Employment & Benefits
  • Canada
  • 25 September 2019

In a recent case, the arbitrator found that the employer need not pay the agreed settlement funds because the grievor's tweets breached the settlement's confidentiality provisions. This case is an important reminder of the significance of confidentiality in the settlement of labour disputes and the need to include clear and unequivocal confidentiality provisions in settlement agreements.

Countdown begins: getting ready for new patented medicines pricing regime
Smart & Biggar
  • Healthcare & Life Sciences
  • 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.

Constructively dismissed? Maybe, but get back to work
Fasken
  • Employment & Benefits
  • Canada
  • 18 September 2019

A recent decision reaffirms that employees must return to work following a constructive dismissal to mitigate the damages that they caused where doing so would not be embarrassing, humiliating or degrading. In such cases, employers should consider whether it is appropriate to re-offer an employee the opportunity to return to work following an allegation of constructive dismissal, as this could greatly limit the damages and their potential liability in litigation.

Market access: biosimilars no longer reviewed by CADTH
Smart & Biggar
  • Healthcare & Life Sciences
  • 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
Smart & Biggar
  • Intellectual Property
  • 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.