Canada: Appeal Relating To New Simplified Application Procedure In Copyright Claim Dismissed (Intellectual Property Weekly Abstracts Bulletin - September 3, 2013)

Last Updated: September 4 2013

Edited by Chantal Saunders and Beverley Moore and Adrian Howard

Copyright

Appeal Relating to New Simplified Application Procedure in Copyright Claim Dismissed

NovaScotia v. Roué, 2013 NSCA 94

The Respondents are descendants of the original designer of the Bluenose, and claim copyright interests and moral rights to his design drawings. When the original Bluenose sunk, the Bluenose II was constructed. This boat has fallen into disrepair. The Province of Nova Scotia started a project that is central to this dispute. The Province argues that it is restoring the Bluenose II, while the Respondents assert that the Province is creating an entirely new vessel based on the lines of the original Bluenose. This is alleged to be an infringement of their copyright and moral rights.

The Respondents used a new rule, Rule 5.07 in the Rules of Civil Procedure, to bring an application to advance their claim. The Province (and other appellants) brought a motion to change the application into a traditional action. They also sought to strike, or obtain particulars, on parts of the claim. These motions were dismissed ( judgment here). In this motion, the Appellants sought leave to appeal, and to have the ruling overturned.

The Court of Appeal refused leave to appeal on the refusal to strike certain aspects of the pleadings or require further disclosure, stating that the judge correctly set out the applicable law and explained why he was exercising his discretion. However, regarding the issue of Rule 5.07,  the Court of Appeal did allow leave to appeal, as this was the first instance the Court had been asked to consider the new process. The Court then considered the decision below, and held that the judge displayed a clear understanding of the issues in the case, and engaged in a comprehensive analysis. The Court found nothing wrong with his result and dismissed the appeal.

Other Cases of Interest

Motion for Interlocutory Injunction in Trade Secrets Case Dismissed

Plaza Consulting Inc. v. Grieve, 2013 ONSC 5338

The Plaintiffs brought a motion for an interlocutory injunction, alleging unfair competition, appropriation of confidential information and wrongful solicitation of its clients and employees. They argued that these actions were in breach of both employment contracts  and fiduciary duties. The defendants are former employees or consultants of the Plaintiff. Furthermore, the new company used by them is in the same consulting technology business, and is a competitor of the Plaintiff. The defendants argued that the alleged confidential information is little more than generic marketing and business practice, and that the customers had already left the Plaintiff.

The Court considered the test for trade secrets and confidential business methodologies and held that there was little in the record that could establish that there was anything unique about the Plaintiff's business operation. The Court held that the business methods alleged to be appropriated were generic business practices. The Court also found there was no evidence of any ongoing contact with any of the Plaintiff's clients and no irreparable harm if any solicitation occurred. Finally, the Court refused an order compelling forensic analysis of the Defendants' computer equipment, as there was no evidence that the equipment still contains some of the Plaintiff's materials. Thus, the Plaintiff's motion was dismissed in its entirety.

Other Industry News

The PMPRB has published a new analytical report under the National Prescription Drug Utilization Information System initiative: Analytical Snapshot: International Generic Price Comparision, Early 2011.

The Natural Health Products Directorate is seeking feedback on proposed changes to the existing guidance document — Compendium of Monographs, version 2.1 (November 2007). The consultation is open until October 26, 2013.

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