Canada: The SCC Monitor (19/04/2016)

A Commentary On Recent Legal Developments By The Canadian Appeals Monitor


Since our last post, the Supreme Court of Canada (SCC) has granted leave in a couple significant cases that will be of interest to our readers:

Douez v. Facebook: Like or Dislike?

The SCC recently granted leave to appeal from the judgment of the B.C. Court of Appeal in Douez v. Facebook ("Douez"), which likely garnered "dislikes" from online businesses and service providers who rely on choice of law and forum selection clauses in their Terms of Use agreements.

Coverage of the lower court decisions are available on our snIP/Its blog here and here.

By way of background, the Plaintiff in Douez commenced an action alleging that Facebook violated users' privacy by using their name and images in paid advertisements without consent. Facebook applied for a stay of proceedings on the basis that its Terms of Use contained a forum selection clause whereby the user agreed to resolve any claim in the federal courts of Santa Clara County, California. The stay was denied by the trial judge, but overturned on appeal. The Court of Appeal found that the forum selection clause should be enforced and the proceeding stayed; the Plaintiff was free to bring the action in California. The Plaintiff sought leave to appeal.

The SCC has agreed to hear this matter. This appeal will give the Court the opportunity to address the issue of jurisdiction in relation to forum selection clauses more generally, and to decide whether this particular lawsuit can proceed in B.C. or if it must be filed in California. Depending on the manner in which the issues are framed, this appeal may also provide an opportunity to grapple with some of the technology issues confronting global online businesses and service providers.

AstraZeneca v Apotex: Questionable Utility

As reported here on our snIP/ITs blog, the SCC also granted leave to appeal from the FCA's decision in AstraZeneca Canada Inc et al v Apotex Inc et al. Very briefly, this case involves a dispute between AstraZeneca, who owns the "653 patent" for a drug called Nexium used in treatment of gastric acid and reflux conditions, and Apotex who sought to be allowed to sell its generic version of the drug. At trial, the Federal Court found Astra's patent was invalid for lack of utility. That finding was upheld by a unanimous FCA. In this appeal, the SCC will have to assess the correct or applicable standards for patent utility in Canada and whether a "promised utility" doctrine properly exists.


The SCC has also refused leave in a number of noteworthy cases, including the following:

The case of Adamson v. Canadian Human Rights Commission, involved a challenge to the mandatory retirement rule ("MRR") in the collective agreement that governed Air Canada pilots' employment on the basis that it constituted age discrimination contrary to the Canadian Human Rights Act. At issue in the case was whether the mandatory retirement rule captured a bona fide occupational requirement under section 15(1)(a) of the Act and/or whether 60 was the normal age of retirement for similarly situated pilots pursuant to section 15(1)(c) of the Act, either of which would be a defence to the pilots' challenge under the legislation as it stood at the time.1

The decision of the Canadian Human Rights Tribunal refusing the pilots' challenge at first instance, primarily on the basis of 15(1)(c), led to five applications for judicial review. The Federal Court hearing those applications set aside the Tribunal's decision in part. The Federal Court held that the Tribunal had misinterpreted a previous Federal Court case with very similar facts, and in so doing, had misidentified the proper comparator group for the section 15(1)(c) analysis.

The FCA overturned the Federal Court's ruling, holding that the lower court had improperly substituted its own opinion on the proper interpretation of the jurisprudence for that of the Tribunal and thereby effectively applied a correctness as opposed to a reasonableness standard of review. The FCA held that the Tribunal, as a specialized administrative body, was entitled to its preferred reading of the case law as long as its reading was reasonable. Moreover, the FCA held that the prior case in question was not binding on the Tribunal, which was faced with a different factual and evidentiary record, despite the similarities. The FCA held that the jurisprudence merely informed the range of reasonable options open to the Tribunal, and the Federal Court was obliged to apply the reasonableness standard to the Tribunal's decision.

The SCC has refused leave to appeal in this case. As a result, the FCA's decision and guidance will continue to govern on the precedential value of analogous case law on a specialized administrative Tribunal and on the standard of review applicable where a Tribunal interprets case law within its expertise.

The SCC also refused leave from the FCA decision in Pfizer Canada Inc. et al. v. Teva Canada Limited. This case involves a commercial dispute about the scope of a settlement agreement resolving a dispute under the Patented Medicines (Notice of Compliance) Regulations ("NOC Regulations"). The matter stems from the amalgamation of generic pharmaceutical companies Novopharm Limited and ratiopharm inc. (along with several other companies) to form Teva in 2010.

Prior to the amalgamation, Pfizer brought applications under the NOC Regulations to prevent the Minister of Health from issuing a Notice of Compliance to Novopharm and ratiopharm for their generic versions of Pfizer's Viagra product (Novo-sildenafil and ratio-sildenafil, respectively). Pfizer entered into a settlement agreement with ratiopharm by which ratiopharm consented to a prohibition order until the expiry of Pfizer's patent. Novopharm, on the other hand, successfully opposed Pfizer's application in court, and obtained a Notice of Compliance for its product.

After the amalgamation, Teva brought an action against Pfizer for section 8 damages for lost sales of Novo-sildenafil (now Teva-sildenafil) for the period that it was kept off the market by Pfizer. Pfizer brought a motion for summary judgment on the basis that the claim was barred by the settlement agreement, which was binding on Teva as ratiopharm's successor.

Both the lower court and FCA found that, while the settlement agreement is binding on Teva, the scope of the agreement only covers ratio-sildenafil. The FCA held that, at the time that the agreement was entered into, the parties could not intend to cover another generic company's products. Pfizer's motion for summary judgment was therefore dismissed.

Marshall v. United Furniture Warehouse Limited Partnership was an attempted consumer protection class action. The Plaintiffs sought to certify a class action in B.C. against United Furniture and its related companies, in part, on the basis that they mislead consumers about a "cash voucher" program. Each customer had a different experience in the stores, as oral representations were made in addition to written representations.

The certification judge found that there were insufficient common issues between the purported class members and refused certification. It was held that the combination of written and oral representations "render[ed] a determination of this issue one for individual inquiry".

A unanimous panel of the Court of Appeal affirmed the lower court's decision. In so doing, the Court underscored that claims based on individual representations to different individual class members, as opposed to a specific representation to an entire class, will be unlikely to raise common issues that would support certification as a class action. This decision reaffirmed the necessity of commonality of experience to justify a class action.

The Supreme Court of Canada has refused leave to appeal in this case.


[1] It is worth noting that section 15(1)(c) of the Act was repealed in 2011 and the MRR was removed from subsequent iterations of the collective agreement between the parties in this case.

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions