Latest updates

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.

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

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.

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.

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.

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.

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.

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

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.

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.

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.

Proposed class action takes aim at airport fees paid by airline employees
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 05 June 2019

Three dozen Canadian airports may be on the hook for fees charged to airline employees flying on employee travel passes. A proposed class action has been commenced in the Federal Court of Canada claiming compensation for airline employees who paid certain fees which the representative plaintiff claims should not have been paid pursuant to agreements signed by the defendant airports.

Propping up insurable interests
Dentons
  • Litigation
  • Canada
  • 04 June 2019

A plaintiff recently claimed indemnification under a residential insurance policy when unknown persons broke into her garage and stole items, including prop guns. Although the court found that the plaintiff had an insurable interest in the prop guns, it found that she was not entitled to be indemnified for their loss because they belonged to another individual who had not been a roomer or boarder.

Bill C-97: amendments to Food and Drugs Act establish framework for advanced therapeutic products
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 29 May 2019

Bill C-97, which was recently introduced in the House of Commons, includes proposed amendments to the Food and Drugs Act to introduce a new framework for advanced therapeutic products, including a new licensing framework. It is expected that advanced therapeutic products may include the regulation of newer technologies, such as cell and gene therapies, 3D printing and novel drug delivery methods.

Proposed amendments to Food and Drug Regulations
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 29 May 2019

Health Canada recently released its proposed Regulations Amending the Food and Drug Regulations (Improving Access to Generics). The proposed regulations clarify and codify Health Canada's expectations and policies regarding differences in the form of medicinal ingredients in generic drug products that are eligible for submission under the abbreviated new drug submission pathway by introducing a regulatory definition for 'therapeutically active component'.

Bill 8: major changes to Employment Standards Act introduced
Fasken
  • Employment & Benefits
  • Canada
  • 29 May 2019

The British Columbia government recently introduced Bill 8 – Employment Standards Amendment Act which, for the first time in more than 15 years, has introduced significant changes to the Employment Standards Act. For employers, the most significant amendments include the requirement that all of the main components of collective agreements 'meet or exceed' the corresponding parts of the act and the extension of the period for which employees can recover owed wages.

Alberta Court of Appeal confirms directors are personally liable for injuries sustained at work
Dentons
  • Litigation
  • Canada
  • 28 May 2019

The Alberta Court of Appeal has revisited the question of directors' personal liability for injuries sustained in a workplace incident. The key question was whether a corporate representative was personally liable for damage resulting from their own tortious conduct while acting as a representative for the corporation. As the applicable tests for determining personal liability remain unclear, this will continue to be a difficult issue for directors to navigate.