The Federal Court of Appeal has decided that when computing compensatory damages for patent infringement, the availability of a non-infringing alternative is now a legally relevant consideration that can reduce the lost profits an infringer is liable to pay a patentee (Apotex Inc v Merck & Co, Inc). Considering non-infringing alternatives means taking into account the realistic effect of legitimate competition by a defendant marketing a non-infringing alternative. This achieves the “perfect compensation” the Patent Act requires. The non-infringing alternative is not, however, conceptual: the defendant must prove the existence of a true, economically viable alternative, and the fact that it could and would have sold that alternative in sufficient quantities to replace infringing sales. (more…)
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Court Unwilling to Impose a Reasonableness Limit on Expenditures
Exploration expenditures incurred to earn into a mining claim did not have to be reasonable, the B.C. Court of Appeal recently held in American Creek Resources Ltd v Teuton Resources Corp, 2015 BCCA 170 [American Creek], in interpreting a short letter agreement drafted without counsel.
In American Creek, Teuton Resources Corp., a mineral “prospect generator” company, entered into an option agreement with American Creek Resources, whereby American Creek would earn a 51-percent undivided interest in a mineral claim upon making “exploration expenditures” of $5,000,000. American Creek incurred over $5,000,000 in expenditures from 2007-2009 and included these amounts in assessment reports accepted by the B.C. Mineral Titles Branch. When American Creek sought to trigger its 51-percent interest, Teuton refused, asserting that some of the expenditures were unreasonable because, in part, of an alleged “lack of expertise and general incompetence” of American Creek. American Creek sued for specific performance, and succeeded at trial. (more…)
On July 14, at a ceremony near Ottawa, Prime Minister Stephen Harper and Ukrainian Prime Minister Arseniy Yatsenyuk announced the conclusion of negotiations on a Canada-Ukraine Free Trade Agreement (CUFTA).
The text of the agreement has not yet been released, but details on the Department of Foreign Affairs, Trade and Development website, suggest that the achievements of the agreement are principally in the area of tariff elimination (with phase-outs of up to seven years) and possibly government procurement. The biggest beneficiaries among Canadian exporters, at least in the shorter term, are likely to be in the agriculture and agri-food sectors. (more…)
Robert Strickland and five other applicants sought to challenge the Federal Child Support Guidelines as unlawful. They argue that the Guidelines are not authorized by the Divorce Act. Unfortunately, this important issue, despite having been litigated all the way to the Supreme Court of Canada, will have to be re-litigated. The Court dismissed the applicants’ claim because the provincial superior courts are a better forum for such an application because of those courts’ expertise in divorce and child support matters. (more…)
The Supreme Court of Canada granted leave to appeal in Wilson v Atomic Energy of Canada Ltd. Federally regulated employers hoping that this important decision from the Federal Court of Appeal was the final word on the law of without cause dismissals of non-union employees under the Canada Labour Code will need to wait for the Supreme Court of Canada to provide clarity. (more…)
This month, the Canada Border Services Agency (CBSA) updated its customs compliance verification priorities for 2015. Trade program verifications of tariff classification, customs valuation and origin are not limited to targets but rather are also initiated randomly to assess risk and revenue, and to promote voluntary compliance. In some cases, targets are experiencing a second round of trade verification, and in other cases, the CBSA is either continuing an existing round of verification or is planning a new round. (more…)
A recent decision of the Divisional Court, in which Bennett Jones and its co-counsel acted for the class, held that whether brokerage fees charged by UPS to customers receiving deliveries in Canada are unsolicited is an appropriate issue to be adjudicated by way of a class action. (more…)
More than ever before, foreign companies with websites accessible by Canadians should consider whether their online activities—even mere data gathering—put them at risk of being subject to the jurisdiction of a Canadian court. In its recent decision in Equustek Solutions Inc v Google Inc, the Court of Appeal for British Columbia made clear that foreign companies can become subject to Canadian laws and courts due to their online interactions with Canadians, even without a physical presence in Canada. (more…)
By Emrys Davis
On July 3, 2015, the Government of Canada announced changes to its Integrity Regime for suppliers. Under the existing regime, suppliers convicted of certain offences, including Competition Act offences such as price-fixing and bid-rigging, were automatically disqualified from government supply contracts. The disqualification applied broadly: even affiliates of a convicted supplier faced automatic disqualification.
Of the several changes, two are particularly relevant for suppliers in the context of offences under the Competition Act. (more…)
On Monday, June 29, 2015, the Canadian government expanded its economic sanctions against Russia and the Crimea region of the Ukraine. Three additional individuals and 14 entities were added to the list under the Special Economic Measures (Russia) Regulations of designated persons with whom most business dealings are prohibited. In addition, four notable energy sector companies, OJSC Gazprom, OJSC Gazprom Neft, OJSC Surgutneftegas, and Transneft OAO, were added to Schedule 3 of the Russia Regulations, which imposes significant restrictions on the provision of debt financing to these entities.
The three individuals are leaders of the Eurasian Youth Union, a Crimean separatist group that was also added to the sanctions list. Other sanctioned entities include an aerospace defence contractor, an investment fund, a motorcycle gang that has participated in the Crimea conflict, and a number of subsidiaries of Russian state-owned defence contractor Rostec Corporation. (more…)