Canada updates

Aviation

Contributed by WeirFoulds
Court certifies two passenger class actions against WestJet
  • Canada
  • 14 April 2021

The British Columbia Supreme Court recently certified two class actions against WestJet. In one, the central allegation was that WestJet had charged baggage fees despite stating in its tariff (at least in part) that the first checked bag would be carried for free. In the other, the one-year expiry on travel credits issued by the airline was alleged to violate consumer protection legislation in several provinces.

Air carrier avoids liability for refusal to transport disruptive passenger
  • Canada
  • 24 February 2021

The British Columbia Civil Resolution Tribunal recently ruled on a dispute involving an air carrier which had refused to transport a disruptive passenger. This decision lays out the type of evidence which a carrier should be prepared to present to avoid liability and serves as a reminder to passengers that they have an obligation to be respectful while travelling.

Filing insurance certificates with Canadian Transportation Agency
  • Canada
  • 23 December 2020

Air carriers offering scheduled international services to or from Canada must, by virtue of the Canada Transportation Act, file proof of insurance each year as a condition of maintaining their licence. Historically, the Canadian Transportation Agency has, in some instances, allowed for leniency in the form of granting extra time for air carriers to file the proper certificates. However, a review of the agency's recent decisions demonstrates that such leniency is no longer being extended.

Should expert reports on Montreal Convention be allowed in challenge to APPRs?
  • Canada
  • 02 December 2020

Even before the first tranche of Air Passenger Protection Regulations (APPRs) provisions came into effect, the International Air Transport Association, Airlines for America and numerous Canadian and foreign air carriers commenced a challenge to the legality of several provisions in the Federal Court of Appeal (FCA). The FCA recently issued a decision in a motion brought by the government to strike portions of two expert reports filed by the airlines in support of their position.


Employment & Immigration

Contributed by KPMG Law
M&A considerations: court reiterates applicable law for employees terminated following transaction
  • Canada
  • 28 April 2021

The Ontario Court of Appeal recently commented on an employee's entitlement to reasonable notice of termination when their employer sells its business and the successor employer subsequently terminates the employee. The court confirmed that an employee's length of service with the vendor employer will be considered, together with their prior experience and the benefit of that experience to the successor employer, when determining the appropriate reasonable notice period.

Government amends federal sector Employment Equity Act regulations
  • Canada
  • 21 April 2021

The amendments to the Employment Equity Regulations which introduce pay transparency measures for federally regulated private sector employers with 100 or more employees recently entered into force. The regulations aim to further address the wage gap that affects women, indigenous peoples, persons with disabilities and members of visible minorities. Private sector employers which are covered by the Employment Equity Act are now subject to new requirements.

Human rights tribunal – childcare obligations require accommodation
  • Canada
  • 14 April 2021

The Ontario Human Rights Tribunal recently found that an employer's failure to accommodate an employee's childcare obligations violated the Human Rights Code. In its decision, the tribunal clarified the legal test for family status accommodation cases. The insight provided by the tribunal is instructive – family status accommodation is no different than any other Human Rights Code ground and employers must give proper consideration to requests for accommodation.

Employment litigation update: what do employers need to know?
  • Canada
  • 07 April 2021

This article covers three recent cases that employers should keep in mind. The first serves as a reminder that employment contracts must be carefully drafted to ensure compliance with the Employment Standards Act. The second makes clear that parties to employment contracts must be careful not to deceive one another and, where they have, must take appropriate steps to correct false impressions. The third is an example of the dangers of using fixed-term contracts that contain no early termination clauses.

Labour arbitrator upholds retirement home's COVID-19 employee testing policy
  • Canada
  • 31 March 2021

A labour arbitrator recently rejected a union's challenge to an employer's COVID-19 employee testing policy. The arbitrator dismissed the grievance and found that the employer, a retirement home, had implemented a reasonable policy to prevent the spread of COVID-19 among its residents. The employer's reliance on public health guidance to create a COVID-19 employee testing policy was found to be reasonable.


Franchising

Contributed by Lapointe Rosenstein Marchand Melançon LLP
When it's not 'better late than never' with franchisee claims
  • Canada
  • 27 April 2021

The Quebec Superior Court recently revisited certain franchising principles and reaffirmed the leading principles of Dunkin' Brands Canada Ltd v Bertico inc concerning the duties of franchisors, while holding both franchisor and franchisee responsible for their respective actions and negligence that led to the downfall of their relationship. This decision highlights the importance of exercising franchisee claims in a timely manner and the dangers of tacit acceptance of franchisors' misrepresentations.

Cold cut for franchisees! Supreme Court of Canada denies designated supplier's duty of care for pure economic loss
  • Canada
  • 16 February 2021

The Supreme Court of Canada recently dismissed the proposed class action brought by Mr Sub franchisees against Maple Leaf Foods for damages resulting from a listeria outbreak linked to Maple Leaf cold cuts. By ruling in Maple Leaf's favour, the majority of the court found that no duty of care is owed by an exclusive supplier for purely economic losses suffered by franchisees with which the supplier has no direct contractual relationship.

Cutting the red tape: recent amendments to Ontario's franchise disclosure act
  • Canada
  • 24 November 2020

In 2017 the Ontario government enacted the Cutting Unnecessary Red Tape Act with the objective of alleviating unnecessary regulatory burdens for businesses. The act provided for a series of proposed amendments to Ontario's franchise disclosure legislation and ultimately came into force on 1 September 2020. The amendments include measures to clarify the province's franchise laws and temper or delay franchisors' disclosure obligations towards prospective franchisees in certain circumstances.

Surprise! Rescission notice can be served in a pleading
  • Canada
  • 22 September 2020

Ontario's Arthur Wishart Act (Franchise Disclosure) requires franchisors to provide adequate pre-contractual disclosure to potential franchisees, failing which a franchisee may be entitled to rescind its franchise agreement. When properly invoked, rescission by a franchisee imposes extensive obligations on the franchisor. The Ontario Court of Appeal recently dealt with the issue of whether a notice of rescission of a franchise agreement is valid if it is contained within a pleading.

'Special relationship' between franchisors and franchisees: could it give rise to a pre-contractual duty of good faith?
  • Canada
  • 14 July 2020

Common law jurisdictions recognise that certain circumstances could arise that would lead contracting parties to have some type of pre-contractual good-faith obligation, including where they have a 'special relationship' – typically characterised by an imbalance of information. A franchise arrangement has been characterised as an example of such a special relationship that could fall within the narrow set of particular requirements for good faith in the pre-contractual context.


Healthcare & Life Sciences

Contributed by Smart & Biggar
Court upholds validity of one pneumococcal vaccine patent but holds two others invalid
  • Canada
  • 26 May 2021

The Federal Court recently issued a decision on the validity of three patents relating to Pfizer's PREVNAR 13, a 13-valent pneumococcal polysaccharide protein conjugate vaccine. Merck had sought to impeach Wyeth's patents on the basis that it believed that Wyeth (now Pfizer) would assert the patents against its 15-valent pneumococcal polysaccharide protein conjugate vaccine, V114. The court upheld the validity of one of Wyeth's patents but declared the other two invalid.

Federal Court of Appeal upholds Federal Court decision finding Shire's VYVANSE patent valid
  • Canada
  • 21 April 2021

The Federal Court of Appeal has dismissed Apotex's appeal of the Federal Court decision which held that the claims of Canadian Patent 2,527,646 were valid and prohibited the minister of health from issuing a notice of compliance to Apotex for its lisdexamfetamine product (Shire's VYVANSE) until the patent's expiry. The prohibition application was consolidated with Apotex's action seeking a declaration of invalidity and non-infringement.

Patentability of diagnostic methods – has the Patent Office drawn the line?
  • Canada
  • 07 April 2021

IP offices have long grappled with whether a medical diagnostic constitutes a traditionally patentable concrete or physical method or instead is merely an unpatentable and intangible abstract idea. Although a new diagnostic tool is typically embodied in a physical device or method, the principal advance often lies in the recognition of a previously unknown correlation. New guidance from the Patent Office is a welcome step forward in this difficult area.

Federal Court finds silodosin formulation patent valid but not infringed
  • Canada
  • 24 February 2021

The Federal Court recently issued a decision in a patent infringement action pursuant to Section 6(1) of the Patented Medicines (Notice of Compliance) Regulations relating to silodosin. Although the court found that the patent was not invalid on the basis of obviousness, it also found that the patent had not been infringed.

Innovators challenge final PMPRB Guidelines in new Federal Court application
  • Canada
  • 09 December 2020

Innovative Medicines Canada and numerous research-based pharmaceutical companies recently commenced an application for judicial review of the final Patented Medicine Prices Review Board Guidelines. The guidelines aim to operationalise amendments to the Patented Medicines Regulations scheduled to come into force on 1 January 2021.


Insurance

Contributed by Theall Group LLP
'Additional insured' coverage and multiple insurers: duty to defend and allocation of defence costs
  • Canada
  • 08 June 2021

Insureds which suffer a loss may find that they are covered by multiple insurance policies for that loss. Such situations can arise inadvertently, or the existence of multiple overlapping policies may be by design. A number of issues may arise with the duty to defend, where there are overlapping or concurrent insurance policies. This article focuses on the duty to defend and how the courts allocate defence costs.

'Additional insured' coverage and multiple insurers: 'other insurance' clauses
  • Canada
  • 01 June 2021

Insureds which suffer a loss may find that they are covered by multiple insurance policies for that loss. Such situations can arise inadvertently, or the existence of multiple overlapping policies may be by design. A number of issues may arise with the duty to defend, where there are overlapping or concurrent insurance policies. This article focuses on how courts resolve overlapping coverage where there is one or more 'other insurance' clauses.

'Additional insured' coverage and multiple insurers: resolving overlapping coverage disputes
  • Canada
  • 25 May 2021

Insureds which suffer a loss may find that they are covered by multiple insurance policies for that loss. Such situations can arise inadvertently, or the existence of multiple overlapping policies may be by design. A number of issues may arise with the duty to defend, where there are overlapping or concurrent insurance policies – for example, how courts resolve overlapping or concurrent coverage absent a clause in one or more of the policies that deals with the issue.

'Additional insured' coverage and multiple insurers: overlapping and common defence coverage
  • Canada
  • 18 May 2021

Insureds which suffer a loss may find that they are covered by multiple insurance policies for that loss. Such situations can arise inadvertently, or the existence of multiple overlapping policies may be by design. A number of issues may arise with the duty to defend, where there are overlapping or concurrent insurance policies. This article focuses on identifying situations of overlapping or concurrent coverage.

Ontario court to insurers: give me clarity, or save your breath!
  • Canada
  • 11 May 2021

Timely reporting to the insurer is essential for liability insurance policies structured on a claims-made basis. Coverage can be lost if a policy renewal intercedes between knowledge of a potential claim and before the insurer is notified. While that result can be justified in some circumstances, a recent decision from the Ontario Superior Court of Justice helpfully confirms that the policy had better be clear for the insurer to take that position.