Decision to not Remove Solicitors as Counsel for the Defendants Upheld on Appeal
Sike v. Encana Corporation, 2017 FCA 37
The Federal Court of Appeal upheld a decision of the Federal Court
dismissing an appeal from the Prothonotary's order wherein he
refused to remove counsel as solicitors of record for the
Defendants. In the underlying motion, the Plaintiffs had argued
that when they were seeking counsel for this proceeding they had
imparted confidential information to the solicitors who are now
counsel to the Defence (Prothonotary's decision: 2016 FC 110, our summary here; Federal Court's
decision: 2016 FC 671, our summary here).
The Court of Appeal reviewed the Prothonotary's decision and
found that the conclusion that no information relevant to the
matter in issue had been conveyed was open to the Prothonotary on
the evidence before him. Therefore, the Court of Appeal concluded
that the Federal Court judge had no reason to intervene, and that
the appeal should accordingly be dismissed.
Federal Court Orders Additional Amount of $100,000.00 as Security for the Defendant's Costs
Regents of the University of California v. I-MED Pharma Inc., 2016 FC 975
Following TearLab's unsuccessful motions for interim and
interlocutory injunctions, the Federal Court ordered that TearLab
deposit an additional amount of $100,000.00 as security for the
Defendant's costs.
The Court found that the Defendant had established that there was
a significant gap between the security of $100,000.00 posted and
the actual costs of $141,101.00 awarded in its favour following the
unsuccessful interim and interlocutory injunction motions. The
Court was also not satisfied that TearLab, an ordinarily resident
outside of Canada, had any assets of value in Canada. Additionally,
there was no suggestion that TearLab was impecunious or that an
order for increased security for costs would create a financial
burden rendering it impossible to carry on the action.
The Court concluded that an additional amount of $100,000.00
should be posted by TearLab as security for the Defendant's
costs. This amount took into account the cost awards already made
in favour and against each party to date and the steps that remain
to be taken by the parties in order to complete examinations for
discovery.
Judicial Review of Commissioner's Decision Refusing to Amend Priority Date Dismissed
Bayer Cropscience LP v. Canada (Attorney General), 2017 FC 178
The Federal Court dismissed Bayer's application for judicial
review of the Commissioner of Patents' decision refusing
Bayer's request to amend the priority date for Canadian Patent
Application No 2,907,271 (the '271 Application).
In this case, Bayer had filed a PCT Patent Application (the
'888 PCT Application) and could claim a prior filing date based
on the filing date of a previous application (the '691 US
Priority Application). At the time of filing the '888 PCT
Application, the filing date for the '691 US Priority
Application was recorded as April 19, 2012. The filing date of the
'691 US Priority Application was later amended to April 3,
2012. However, the filing date for the '888 PCT Application was
never successfully amended.
In August 2015, the '888 PCT Application entered the national
phase in Canada as the '271 Application. Bayer requested that
it be given a filing date of April 3, 2012 on the basis that it was
claiming priority from the '691 US Priority Application. The
Commissioner denied Bayer's request, concluding that the
Bayer's August 2015 request was not within the 16-month period
following the filing date of the '691 US Priority
Application.
The Federal Court concluded that the Commissioner correctly
interpreted the Patent Rules in finding that Bayer's request to
amend the priority date was out of time. The application for
judicial review was dismissed with costs.
Trademarks Decisions
Court of Appeal Affirms Re-determination – Individual Defendant is Still Jointly and Severally Liable for $64,000 in Damages and $250,000 in Punitive Damages for Selling Knock-off Chanel Products
Lam v. Chanel S. de R.L., 2017 FCA 38
This was an appeal of the Federal Court's re-determination of
a motion for summary trial
(2016 FC 987, previously summarized here).
In the original decision (2015 FC 1091, previously summarized here), the Federal Court awarded
judgment against the Defendants for the infringement of several
Chanel trademarks. The Defendants were selling knock-off Chanel
merchandise out of their condominium unit and in a strip mall. The
Defendants were ordered to pay, jointly and severally, $64,000 in
damages, plus $250,000 as punitive and exemplary damages, plus
$66,000 in costs. On appeal, the Court of Appeal in 2016 FCA 111 set aside the trial judge's
decision as it related to the personal Defendant and remitted the
summary trial motion for re-determination. The Court of Appeal
wanted the Judge to resolve the ambiguity in the decision related
to whether the individual Defendant was liable for three or four
acts of infringement. This affected the quantum of damages and
costs awarded and this Defendant's joint and several
liabilities.
At the re-determination, the Federal Court confirmed the original
judgment, including the compensatory damages award, the punitive
damages award and the costs award. The Federal Court expressly
confirmed that the individual Defendant was personally liable for
all four infringements.
In this appeal, the Appellant did not contest the findings of
liability, confining her appeal to the awards of compensatory and
punitive damages and costs. The appeal was dismissed on all
grounds. On the issue of punitive damages, the Court of Appeal
noted that the Judge's assessment of the amount of damages was
largely focused on the Defendants' conduct and the conclusion
that compensatory damages alone would not be a deterrent; this was
consistent with the case law. As the appeal was without merit and
no substantive ground or challenge to the judgment was advanced,
the Court of Appeal awarded costs on a solicitor-client basis.
Industry News
Health Canada has released a Notice to announce a meeting of Health Canada's Scientific Advisory Panel on Opioid Use and Contraindications (SAP-OUC). The website indicates that the meeting will take place on March 24, 2017. The detailed agenda for the SAP-OUC meeting will be posted at a later date.
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