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.

Air passenger rights group challenges CTA statements on COVID-19 vouchers
  • Canada
  • 18 November 2020

In March 2020 the Canadian Transportation Agency (CTA) issued public statements suggesting that it could be reasonable for airlines to provide travel vouchers for flights cancelled as a result of the COVID-19 pandemic, rather than providing refunds. An advocacy group commenced an application for judicial review of the statements, asserting that they violated the CTA's Code of Conduct and misled passengers as to their rights. The Federal Court of Appeal recently dismissed the motion.


Corporate Tax

Budget 2019: intensifying fight against tax evasion and new risks for tax professionals
  • Canada
  • 19 April 2019

In Budget 2019 the federal government has continued to bolster its tools and resources to detect and prosecute tax evasion. As such, several measures have been proposed, including a C$150.8 million investment over the next five years to fund new initiatives. More so than ever, tax professionals should be well acquainted with various definitions to ensure that their client services and advice cannot be construed as the commission or facilitation of a criminal offence.


Employment & Immigration

Contributed by KPMG Law
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.

Labour arbitrator finds that employee's failure to follow COVID-19 guidelines is just cause for dismissal
  • Canada
  • 24 March 2021

An arbitrator recently found that an employee's failure to follow their employer's and the public health guidelines relating to COVID-19 was just cause for termination. As a unionised employee, the employee benefited from the just cause protections for termination under the collective agreement. Despite those protections, the arbitrator found that the employee's actions were a "clear violation" of COVID-19 guidelines and warranted dismissal.


Franchising

Contributed by Lapointe Rosenstein Marchand Melançon LLP
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.

Can good faith require parties to help each other properly exercise their rights?
  • Canada
  • 12 May 2020

It is well known that franchisors have been facing increasing pressure to conduct themselves in accordance with the principles of good faith. A recent Ontario Superior Court case has led to questions with respect to a franchisor's duty to protect its franchisee's right to operate in circumstances where the franchisor is the gatekeeper of rights with respect to a third party. In its decision, the court navigated the duty of good faith owed in respect of the renewal of a head lease between a franchisor and a landlord.


Healthcare & Life Sciences

Contributed by Smart & Biggar
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.

Few significant changes made in final PMPRB guidelines
  • Canada
  • 25 November 2020

The Patented Medicine Prices Review Board recently published the final version of its guidelines which operationalise the amendments to the Patented Medicines Regulations scheduled to come into force on 1 January 2021. This article provides a brief summary of the final framework for the price review process and highlights changes relative to the June 2020 draft guidelines.

Federal Court orders minister of health to issue NOC to Fresenius Kabi for biosimilar
  • Canada
  • 25 November 2020

Justice Manson of the Federal Court recently ordered the minister of health to issue a notice of compliance to Fresenius Kabi for IDACIO (adalimumab), a biosimilar of AbbVie's HUMIRA. The minister of health had completed its review of Fresenius Kabi's new drug submission for IDACIO; the only outstanding issue was whether Fresenius Kabi had addressed the patents listed on the Patent Register in respect of HUMIRA.