Latest updates

British Columbia Court of Appeal confirms stringent test for family status discrimination
Fasken
  • Employment & Benefits
  • Canada
  • 17 July 2019

Family status discrimination continues to be an area in which the law differs across Canada. In British Columbia, the test for family status discrimination has been more stringent than in other parts of the country for the past 15 years. A recent case involving a project manager who was assigned to work in another province for eight to 10 weeks a few months after the birth of his first child confirms that a personal preference to provide childcare, without additional factors, does not trigger a duty to accommodate based on family status.

National pharmacare update: publication of advisory council's final report
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 17 July 2019

The minister of health recently published the final report from the Advisory Council on the Implementation of National Pharmacare. The council has recommended that Canada implement universal, single-payer, public pharmacare by enacting new legislation and proceeding in a stepwise approach to implementation.

Federal Court upholds PMPRB's pricing decision regarding Alexion's Soliris
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 17 July 2019

The Federal Court recently dismissed Alexion's application for judicial review of a Patented Medicines Price Review Board (PMPRB) panel's decision that Soliris (eculizumab) had been sold at an excessive price and its order fixing the amount of the payment to offset excess revenues (C$4.2 million). The application was dismissed on the grounds that, among other things, the PMPRB had not been unreasonable in ordering payment of excess revenues based on the highest international price comparison.

Sufficient evidence is key to overturning release for unfairness
Fasken
  • Employment & Benefits
  • Canada
  • 10 July 2019

A recent Ontario Court of Appeal decision has confirmed that a release signed by an employee should be overturned for unfairness only if there is clear evidence of a lack of fairness. The court specifically cautioned against making conclusions on motions without sufficient evidence, which may cause plaintiffs and defendants alike to reconsider under what circumstances the court will grant summary judgment.

Supreme Court of Canada denies Apotex leave to appeal in two cases
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 10 July 2019

The Supreme Court of Canada has denied Apotex leave to appeal in two recent cases. In the first case, Apotex sought leave to appeal a decision of the Ontario Court of Appeal permitting Sanofi and Schering to amend their defences to claims relating to ramipril. In the second case, Apotex sought leave to appeal a decision of the Federal Court of Appeal relating to damages awarded to Eli Lilly in respect of Apotex's infringement of process patents relating to cefaclor.

Guidance document on reporting adverse reactions to marketed health products
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 10 July 2019

Health Canada has published its Overview of the Reporting Adverse Reactions to Marketed Health Products – Guidance Document for Industry. The guidance document provides market authorisation holders with assistance on how to report adverse reactions to pharmaceutical drugs, biologics, radiopharmaceutical drugs and natural health products.

Reference re Environmental Management Act (British Columbia): one step forward for Trans Mountain
  • Litigation
  • Canada
  • 09 July 2019

A recent British Columbia Court of Appeal decision is significant because it has removed (for now at least) one of the barriers to the development and construction of the Trans Mountain Expansion Project. It has also provided some clarity on the roles that the federal and provincial governments may properly play in the regulation of interprovincial pipelines and, more broadly, in the complex area of environmental regulation.

Supreme Court of Canada denies Apotex leave to appeal in two cases
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • 08 July 2019

The Supreme Court of Canada has denied Apotex leave to appeal in two recent cases. In the first case, Apotex sought leave to appeal a decision of the Ontario Court of Appeal permitting Sanofi and Schering to amend their defences to claims relating to ramipril. In the second case, Apotex sought leave to appeal a decision of the Federal Court of Appeal relating to damages awarded to Eli Lilly in respect of Apotex's infringement of process patents relating to cefaclor.

Experimental use exception under recently amended Patent Act
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • 08 July 2019

Canada recently introduced the Budget Implementation Act 2, which brought about several changes to the Patent Act affecting the scope of protection available under Canadian patents. Included in the changes was the addition of a new provision providing an exception from infringement for experimental use of patented technologies. The new provision applies to any action or proceeding that was not finally disposed of as of 13 December 2018.

Proposed regulations set to amend process for sale of drugs for medical emergencies
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 03 July 2019

Two sets of proposed amendments to the Food and Drug Regulations were recently published and contain provisions which would streamline the process for providing access to unauthorised drugs for medical emergencies. Access to the drugs will continue to be facilitated through the Special Access Programme for human drugs and the Emergency Drug Release Programme for veterinary products.

Health Canada releases new guidance document regarding drug identification numbers
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 03 July 2019

Health Canada recently released the new Guidance Document: Regulatory Requirements for Drug Identification Numbers. The document assists in interpreting the regulatory requirements associated with drug identification numbers and offers guidance to manufacturers on their obligation to accurately report notifications for a change of drug status to Health Canada.

Amendments to Workers Compensation Act and Employment Standards Act pass further readings
Fasken
  • Employment & Benefits
  • Canada
  • 03 July 2019

Bill 18 – Workers Compensation Amendment Act 2019, which proposes to expand the definition of 'firefighter' under the Workers Compensation Act for the purpose of presumptions in favour of compensation for firefighters, has passed its third reading in the British Columbia Legislature. In addition, the second reading of Bill 8 – Employment Standards Amendment Act 2019 has been held, providing additional details around some of the government's proposed amendments to the act.

Alberta judge dismisses case against police officers on grounds of reasonable force
  • Litigation
  • Canada
  • 02 July 2019

A Court of Queen's Bench of Alberta judge recently dismissed a case against police officers and the chief of the Edmonton Police Service in its entirety, concluding that the use of force by the defendants did not exceed what was reasonably necessary for the plaintiff's arrest. The case is significant for the court's analysis of forward-looking infrared video evidence, treatment of a prior judicial decision in related criminal proceedings and analysis of the physical force used by police officers to effect an arrest.

Ontario Court of Appeal: insured's failure to provide up-to-date address not breach of duty to cooperate
Theall Group LLP
  • Insurance
  • Canada
  • 02 July 2019

The Ontario Court of Appeal recently reconfirmed that an insured's duty to cooperate with defence council appointed by its insurer is not subject to a standard of perfection. This case serves as a strong reminder that a breach of the duty to cooperate must be substantial. It shows that, in practice, without real consequences arising from an insured's conduct, there can be no substantial breach of the duty to cooperate.

Update on PMPRB guidelines modernisation
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • 01 July 2019

The Patented Medicine Prices Review Board (PMPRB) previously announced that the steering committee on guidelines modernisation would hold its final meeting on 13 May 2019 to discuss both a draft report of its deliberations and the working group's final report. Once the steering committee's report has been finalised and the regulatory amendments have been published in Part II of the Canada Gazette, the PMPRB will release its draft guidelines for public consultation.

Infringement based on making and selling under existing NOC struck from action
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • 01 July 2019

The Federal Court has granted in part Pharmascience's motion to strike out portions of Teva's statement of claim under Subsection 6(1) of the Patented Medicines (Notice of Compliance) (PMNOC) Regulations relating to glatiramer acetate (Teva's Copaxone and Pharmascience's Glatect). The court found that it is plain and obvious that Section 6.02 of the PMNOC Regulations prohibits the joinder of a regular infringement action under the Patent Act with an action pursuant to Subsection 6(1).

Amending the Broader Public Sector Executive Compensation Act
Fasken
  • Employment & Benefits
  • Canada
  • 26 June 2019

In 2018 the Ontario government issued a new compensation framework regulation that continued to freeze the current levels of compensation for executives at most designated employers within the broader public sector. While the freeze remains in effect, proposed amendments indicate that the government will be introducing a new regulation – and new compensation frameworks – that will provide further guidance on executive compensation going forward.

Update on PMPRB guidelines modernisation
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 26 June 2019

The Patented Medicine Prices Review Board (PMPRB) previously announced that the steering committee on guidelines modernisation would hold its final meeting on 13 May 2019 to discuss both a draft report of its deliberations and the working group's final report. Once the steering committee's report has been finalised and the regulatory amendments have been published in Part II of the Canada Gazette, the PMPRB will release its draft guidelines for public consultation.

Infringement based on making and selling under existing NOC struck from action
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 26 June 2019

The Federal Court has granted in part Pharmascience's motion to strike out portions of Teva's statement of claim under Subsection 6(1) of the Patented Medicines (Notice of Compliance) (PMNOC) Regulations relating to glatiramer acetate (Teva's Copaxone and Pharmascience's Glatect). The court found that it is plain and obvious that Section 6.02 of the PMNOC Regulations prohibits the joinder of a regular infringement action under the Patent Act with an action pursuant to Subsection 6(1).

Throwing an egg at someone: Ontario Superior Court addresses hatching of new legal test
  • Litigation
  • Canada
  • 25 June 2019

Imprecision in identifying the risks of driving influences how insurers assess the value of automobile insurance. A recent Ontario Superior Court of Justice decision reminds insurers and insured persons how difficult it can be to properly assess and categorise risk at the outset of an insurance relationship; however, it offers little guidance on how the modified causation test should be applied in future cases involving projectiles from motor vehicles.