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Use of Competitors’ Trademarks as Google AdWords is not Infringement

By L.E. Trent Horne

The British Columbia Supreme Court has decided that the use of a competitor’s trademarks in Google AdWords does not constitute infringement.

In Vancouver Community College v Vancouver Career College (Burnaby) Inc., Vancouver Community College asserted trademark rights in “VCC”. It claimed that those rights were infringed, among other things, when Vancouver Career College purchased VCC as a Google AdWord.

AdWords is an online advertising program offered by Google where an advertiser can purchase certain keywords. When a user searches Google using an advertiser’s keyword, an advertisement may appear next to the Google search results. Keywords can also trigger advertisements to show on other sites across the Internet which are affiliated with Google AdWords. By purchasing the keywords, Vancouver Career College was able to rank higher in some Google search results than Vancouver Community College when a user did a search for “VCC”. (more…)

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Condo Airbnb

What Condo Companies Can Do About Airbnb-like Organizations

By Alan Rankine

Cheap, short-term rental accommodations through companies like Airbnb Inc. are popular for travelers and condominium owners, however they are not as appealing for condo corporations when they occur in their condo complexes. Short-term renters have less reason to be invested in the security, safety and comfort of the occupants residing in the complex or in the security of the property itself (see the CBC article “Airbnb Nightmare Renters Leave Calgary Home Trashed“).

Although Airbnb and similar short-term rental organizations are currently legal in all provinces, their future may be quite different. Quebec is looking to regulate and tax this business, as are several cities in the USA. The remainder of the Canadian provinces will likely follow. (more…)

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Potential Privacy Breach Results in the Conditional Certification of a Class Action

By Justin R. Lambert, Mike A. Eizenga, Hugo M. Alves, and J. Sebastien A. Gittens

On July 27, 2015, the Federal Court conditionally certified a class action with respect to an alleged privacy breach arising from the federal government’s administration of the Marihuana Medical Access Program (the Program). In Doe v Her Majesty the Queen, 2015 FC 916, the plaintiffs alleged that Health Canada publicly identified them as members of the Program by mailing oversized envelopes which had the return address of the “Marihuana Medical Access Program” visible on the outside. The certified class could include the approximately 40,000 people who received these envelopes between November 12 and 15, 2013. The plaintiffs claim that these envelopes had adverse impacts on their lives, including having their neighbours and employers discover that they are participants in the Program, and causing security concerns, in that that the disclosure could potentially make them the targets of crime. The plaintiffs allege a number of causes of action, including negligence, breach of contract, the tort of intrusion upon seclusion, as well as the “truly novel” tort of publicity given to private life (which is made out when publicity is given to a matter concerning the private life of another, and the matter publicized is of a kind that: (i) would be highly offensive to a reasonable person; and (ii) is not of legitimate concern to the public). (more…)

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Bring Your Own Devices - Laptop, tablet, mobile phone

Privacy Commissioners Issue Joint Guidance on Bring Your Own Device Programs

Martin P.J. Kratz, QC, Michael R. Whitt, QC, Stephen D. Burns, J. Sebastien A. Gittens and Graeme S. Harrison

An organization’s information can be put at risk when staff begin to bring their own devices and use them in the workplace. As a result, in such cases, an organization should consider adopting an appropriate “bring your own device” (BYOD) program to seek to manage the risks inherent in such activity.

Generally, a BYOD program allows an organization’s employees to use their personal mobile devices for both personal and business purposes. A threshold issue for an organization is to consider what devices may be included in a BYOD policy, as society has moved far past smart phones to all sorts of wearable devices that can capture, process and post an organization’s confidential information and the personal information of its staff and customers. While there are many benefits to a BYOD program (e.g., an increase in employee satisfaction and productivity), organizations should evaluate the various inherent risks associated with the implementation and use of a BYOD program, and take reasonable steps to mitigate such risks. (more…)

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Change in Limitation Period Law Significant for Construction Projects

By Christopher Petrucci

In Whitecourt Power Limited Partnership v Elliott Turbomachinery Canada Inc., 2015 ABCA 252 (Whitecourt Power), the Alberta Court of Appeal interpreted a recent amendment to the Limitations Act that changed the limitation period for a defendant seeking contribution from a third party. For a detailed account of this recent decision, see Breathing Room: The Alberta Court of Appeal Addresses the New Limitation Period for Third-Party Claims.

Prior to the amendment, which became law on December 14, 2014, the limitation period for a defendant seeking contribution from a third party where the third party may be liable to the plaintiff, started from the time that the plaintiff knew or ought to have known of its claim against that third party. The difficulty created with this approach is that the defendant was often at the mercy of the plaintiff’s limitation period relative to the third party even though the defendant may not have yet been sued. This limited the defendant’s ability to bring third parties into the lawsuit where the limitation period between the plaintiff and the third party had expired.

In Whitecourt Power, the Alberta Court of Appeal interpreted the amendment for the first time. In doing so, the Court held that the earliest date the limitation period could start for a third-party claim that alleged a breach of a duty owed between the third party and the plaintiff was the date the defendant was served with a statement of claim. The Court also found that the wording of the Limitations Act amendment meant a defendant may not discover its claim for contribution until sometime after it received the statement of claim.

This change in the law is likely going to be significant for industries where defendant companies are often confronted with the question of whether there are any third parties that should be accountable for the plaintiff’s claim, or potential claim. To focus on construction as an example, there are often multiple layers of contractors on a project, which is further complicated by the fact that owners or general contractors are frequently unaware of the universe of entities providing labour, materials and equipment.

As a defendant operating in such industries, knowing which party to bring into a lawsuit, how to properly frame the claim for contribution against a third party, and by when, can all be challenging tasks. As far as the “when” is concerned, the recent decision of Whitecourt Power, and the Limitations Act amendment that gave rise to it, appear to better position defendants faced with a limitations argument from third parties.

Christopher Petrucci appeared as lead counsel for the plaintiff, Whitecourt, before the Master and the Court of Appeal.

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Wind in a sail

Significant Headwinds for Securities Class Actions

By Alan P. Gardner and Justin R. Lambert

In April 2015, the Supreme Court of Canada released its decision in Theratechnologies Inc. v 121851 Canada Inc., 2015 SCC 18, in which it emphasized the need for a robust screening mechanism to prevent unmeritorious secondary market misrepresentation class actions from proceeding. We predicted then (see Theratechnologies Inc. v. 121851 Canada Inc.: The Supreme Court Gives the Leave Test Teeth) that the Supreme Court had intended to “give teeth” to the applicable test, to discourage unmeritorious securities class actions. This appears to be the case.

The recent decision in Coffin v Atlantic Power Corp., 2015 ONSC 3686, is the first decision to consider the certification bar set by the Supreme Court in its April 2015 Theratechnologies case. Atlantic Power indeed confirms that courts are willing to set a higher hurdle for Plaintiffs before green-lighting these types of class actions. (more…)

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Ontario Court Upholds Limitations on Liability for Misrepresentations Contained in Take-Over Bid Circulars

By Alan P. Gardner, Ranjan K. Agarwal, Amanda C. McLachlan and Joseph N. Blinick

In a decision released on July 30, 2015, the Ontario Superior Court of Justice has clarified that plaintiffs seeking to advance claims under section 131(1) of the Securities Act (Ontario) alleging misrepresentation in a take-over bid circular cannot proceed against both the offeror and its directors, but rather, are required to make an election. Notwithstanding the broad mandate for public protection created under the Securities Act, the Court clearly affirmed that the rights of action provided pursuant to section 131(1) are mutually exclusive. Plaintiffs are precluded from advancing such statutory rights of action concurrently against both an offeror and its directors, and, by necessary implication, from pursuing vicarious liability claims. (more…)

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Just Perfect: Compensatory Patent Damages in Apotex Inc v Merck & Co, Inc

By Dominique T. Hussey

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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Signing an Agreement

Dangers of a Self-Drafted Letter Agreement

Court Unwilling to Impose a Reasonableness Limit on Expenditures

By Scott H.D. Bower and Russell J. Kruger

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…)

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Ukrainian Flag

Canada Announces Free Trade Agreement with the Ukraine

By Matthew Kronby and Jessica B. Horwitz

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…)

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