Legal Feeds Blog
Canada's black market for illicit drug fentanyl booming, Globe and Mail
Vancouver seeks judicial review of Trans Mountain pipeline expansion, Globe and Mail
Man charged with in canine deaths at Saskatoon kennel, Canadian Press
Florida man accused of Clinton Foundation hack to plead guilty, Reuters
Trump revokes Obama guidelines on transgender bathrooms, Reuters
Malaysia requests Interpol alert on four suspects in Kim Jong Nam murder, Reuters
Eight people arrested in anti-police protest at Parisian high schools, Reuters
Feb. 20-24, 2017
The Supreme Court of Canada will hear four appeals this week: one criminal concerning treatment of evidence in a sexual assault trial and the other three civil, notably Teva Canada’s appeal from the Court of Appeal for Ontario regarding banks’ liability for converting cheques in fraudulent circumstances.
Feb. 21 – Saskatchewan – Olotu v. R.
Criminal law: The appellant was convicted of sexual assault causing bodily harm. At trial, he admitted that he engaged in anal intercourse with the complainant and claimed she had consented. The complainant had no independent memory of the incident, but said she would never have consented to anal intercourse. The trial judge found the complainant did not consent because of the bruising and bodily harm she suffered which, in his view, were inconsistent with consensual sex, and that her account of the incident and what followed was credible and consistent. A majority of the Court of Appeal dismissed the appellant’s appeal.
Read the Saskatchewan appellate court decision here.
Related legal briefs:
Summary of R v Olotu; Law Society of Saskatchewan
Feb. 22 – Quebec – Pellerin Savitz v. Guindon
Civil law: The respondent, Serge Guindon, retained the professional services of the applicant law firm, Pellerin Savitz LLP, to defend him in litigation before the Superior Court. During the performance of the mandate, the applicant sent the respondent five accounts for fees between Oct. 5, 2011 and March 1, 2012. None of the accounts was paid. On March 21, 2012, the respondent informed the applicant that he was withdrawing the mandate. On March 10, 2015, the applicant brought an action against the respondent to recover claims for unpaid fees. The respondent asked that the action be dismissed because the claims arising from the unpaid accounts for professional fees were prescribed.
Read the Quebec appellate court decision here.
Related legal briefs:
Professions in Québec: Fees; Supreme Advocacy LLP
Feb. 23 – Quebec – City of Montréal v. Dorval et al.
Civil liability: The respondents are members of the family of Maria Altagracia Dorval, who was murdered by her former spouse in October 2010. In October 2013, they filed a motion to institute proceedings claiming damages from the City of Montréal based on the inaction of its police force and the police officers of whom it was the principal, which had led to Ms. Dorval’s death. They claimed damages on behalf of the late Ms. Dorval’s succession for suffering, pain and inconvenience due to constant harassment by her former spouse and police inaction, and personally for solatium doloris, funeral expenses and loss of emotional support. The City of Montréal filed a motion to dismiss, alleging that the direct personal action in damages brought by the mediate or indirect victims as a result of the death was prescribed by s. 586 of the Cities and Towns Act, CQLR, c. C 19.
Read the Quebec appellate court decision here.
Related news stories:
Family of stabbing victim Maria Altagracia Dorval fights for compensation; CBC News Montreal
5 officers cleared by ethics committee in case of Maria Altagarcia Dorval's death; Montreal Gazette
Feb. 24 – Ontario – Teva Canada v. TD Canada Trust et al.
Commercial law: Teva, a major manufacturer of generic pharmaceuticals, the respondent banks fell victim to a fraudulent scheme orchestrated by a Teva employee, M, who was responsible for administering Teva’s rebate programme. From 2002 to 2006, M requisitioned 63 cheques totalling $5,483,249.40, payable to six entities to whom Teva owed no monies. M and his accomplices deposited the cheques into small business accounts they had opened at the respondent banks. Teva sued the banks for damages for conversion, and the banks raised defences under the Bills of Exchange Act, and under the Ontario Limitations Act. Each party brought motions for summary judgment. The motion judge granted summary judgment in favour of Teva, which was reversed on appeal.
Read the Ontario appellate court decision here.
Related legal briefs:
Court Rules Banks Not Liable for Converting Cheques to Non-Existing/Fictitious Payees; Borden Ladner Gervais LLP
Supreme Court of Canada to Clarify Banks’ Defences to Cheque Fraud; Aird & Berlis LLP
|Malcolm Mercer says the working group looking at the issue has not determined what the potential cap on referral fees could be.|
The working group examining the issue has found that clients of some personal injury firms do not always know about the existence of referral fees, or that they are being referred to another lawyer, even though the law society’s current rules require lawyers to disclose such information.
Convocation will decide on Thursday whether to adopt either an outright ban of referral fees or a cap limiting how much lawyers could pay each other for referrals.
“The working group thought that there were two plausible choices that Convocation should make,” says Bencher Malcolm Mercer, who is chairman of the Advertising and Fee Arrangements Issues Working Group Report.
“And when there was not consensus within the working group as to which of the two answers was the right one, the better course was to put it to convocation.”
The working group found that some referral fees have crept up to more than 20 per cent. Some who gave feedback to the working group have advocated for a 10-per-cent cap on all referral fees, while others have asked for a 30-per-cent level.
If Convocation decides to approve the cap, the working group will come up with an appropriate amount, as well as additional measures to ensure greater transparency.
Mercer says these measures could include a requirement of a formal written agreement between the referrer and the client. Another transparency measure could be a requirement that lawyers make it clear in their advertisements when some of the work will be referred out to other lawyers or firms, he says.
Mercer says the working group has not made a decision on what the cap would be, but he expects it would be “in the lower range.”
The law society is also looking to add to its rules on advertising, which currently include requirements that lawyers advertise in a way that is not misleading, is accurate, and is in the best interest of the public.
The new rules would require licensees to identify whether they are a paralegal or a lawyer in their advertisements. The law society would also look to amend the Rules of Professional Conduct to “guide licensees as to the appropriate use of awards and honours, and to protect the public from misleading use of awards and honours when necessary.”
Licensees would also be banned from advertising work that they are not permitted to do, or do not intend to do.
The working group flagged the issue in its interim report that said some firms have advertised legal services that were referred out without any intention of doing that work.
The proposed changes also include a ban on second opinion advertising, which entices a potential client that already has a lawyer to retain the advertiser instead.
The rules would also ban lawyers from referring to third party awards and rankings in their ads that are “not bona fide or are likely to be misleading, confusing or deceptive.”
The working group’s interim report from the summer also tackled issues concerning advertising in the real estate bar as well as contingency fees, but the committee has not finished its work on those issues.
Crown says man planned to kill as many co-workers as he could at Edmonton warehouse, Canadian Press
Six-year-old boy's death prompts warning abut ice levels on drainage canals, Canadian Press
No working smoke alarms in Brampton, Ont. home with fatal fire: OFM, Canadian Press
Federal appeals court upholds Maryland's ban on assault rifles, Reuters
Demonstrators brace for showdown near site of Dakota Access pipeline, Reuters
New security advisor differs from Trump on Russia, other key issues, Reuters
U.K.'s Supreme Court backs government on immigration income test, Reuters
Malaysia names North Korean diplomat wanted for questioning in murder case, Reuters
|Caravel Law co-founder Joe Milstone says law firms in the U.S. have been making common, basic precedents available for quite some time.|
Recently, Caravel Law, formerly Cognition LLP, launched Caravel Law Compass — a platform to assist startups and investors in generating free first-draft documents and expedite the financing process.
“The idea is about making basic information and documents ubiquitous and available to everybody,” says Caravel co-founder Joe Milstone, who notes it may also be a tool used by in-house counsel.
“There is really no reason why this couldn’t be incredibly valuable to corporate counsel as well, in terms of doing financing and in-sourcing — it’s one of those areas often considered not a core area of expertise and so they flip it outside,” he says.
Using technology and automation, Caravel took documents important to small to mid-size companies to create early drafts of what tend to be common financing documents.
“More than making the templates available, we’ve created a way to provide free access to this portal and tool so companies plug in information and develop their own initial drafts, which can save them a lot of money,” says Milstone.
When the company decides it needs further legal advice, it can go to outside lawyers, but in between, it has saved some money as opposed to paying for a precedent that has been created over and over again.
“There’s no reason why it can’t be valuable to corporate counsel as well in terms of how they are doing financing and in-sourcing more than they traditionally have. You’re often paying a lot of money for what is likely pulling a precedent off the shelf in many cases,” says Milstone.
In creating the tool, Milstone says Caravel looked at the “best of breed” of various documents and using Contract Express (a product developed by a U.K-based company prior to it being acquired by Thomson Reuters in October 2015) created the appropriate questions to self-generate documents at the early stages of a matter.
Caravel has a partnership with National Angel Capital Organization to provide the service for its members and small to medium-size companies. Caravel used the tool to create automation for basic incorporation, but it had not taken it a step further for the financing process.
“The thinking is that there is no inherent IP value in just a document or a precedent,” says Milstone. “We hope to, and we feel we can play a valuable role in terms of customizing and tailoring and negotiating those documents. But if we can’t add that value, then, frankly, we’re happy to make that IP available to everybody on a free basis. Our value comes in with what we can do with it afterwards.”
The next step for Caravel, says Milstone, is creating similar frameworks and templates for regular business documents such as non-disclosure agreements, supplier, vendor and sales agreements.
This kind of service has been offered by some firms in the United States for quite a while, including Cooley LLP, an international law firm based in Palo Alto, Calif. It is a firm often pointed to as a primary example of how firms are making precedents available to clients for free.
“It’s been done in the States by larger firms long ago and long-awaited in Canada but has been frustratingly not available for companies,” says Milstone.
Accused in Quebec City mosque shootings returns to court on murder charges, Canadian Press
Mississauga man faces multiple charges in historical sex assault investigation, Canadian Press
Distraction possible factor in fatal pedestrian collision with Calgary C-Train, Canadian Press
Lieutenant General Herbert Raymond McMaster named national security adviser, Reuters
Supreme Court rejects Alabama death penalty inmate's appeal, Reuters
Israeli soldier gets 18 months' jail for killing wounded Palestinian attacker, Reuters
Exclusive: Myanmar probing police 'cover-up' of deaths of two Rohingya Muslims, Reuters
In Corporation of the City of Nelson v. Mary Geraldine Mowatt, et al. the Supreme Court of Canada found unanimously that the City of Nelson’s appeal should be allowed.
“The [British Columbia] Court of Appeal correctly held that the inconsistent use requirement forms no part of British Columbia law governing the proof of adverse possession,” wrote Justice Russell Brown, with Chief Justice Beverley McLachlin and Justices Michael Moldaver, Andromache Karakatsanis, Richard Wagner, Clément Gascon and Suzanne Côté concurring.
“That said, the Court of Appeal, in my respectful view, erred by substituting its own findings of fact for those properly arrived at by the chambers judge. In light of that conclusion, it is unnecessary for me to address arguments regarding the significance, if any, of the fact that the purported transfer of the disputed lot was not registered in accordance with British Columbia’s land titles system.”
The Mowatts claimed title to a parcel of land in Nelson, British Columbia, which they took possession of in 1992. Their claim rested upon continuous adverse possession thereof by three families in succession, beginning in 1909. To enforce their claim, the Mowatts brought two proceedings: an action for a declaration that the provincial Crown, which holds registered title, does not own the disputed lot and therefore could not transfer it to the City of Nelson by escheat; and a petition for judicial investigation under the Land Title Inquiry Act into their title to the disputed lot.
The chambers judge granted the City’s summary trial application to dismiss both proceedings, pointing to an evidentiary gap, namely, an interruption in the continuity of adverse possession running from approximately 1916 to 1920. The Court of Appeal reversed, finding that the chambers judge had erred in his treatment of the evidence of continuous occupation, and concluding that continuous adverse possession of the disputed lot was demonstrated from December 1909 to at least February 1923.
The Court of Appeal also held that lack of registration did not prevent the transfer to the Mowatts of their predecessor’s interest in the disputed lot, and that the law of British Columbia does not require the Mowatts to demonstrate that their use of the disputed lot was inconsistent with the intended use of the true owner.
There are three key aspects of the SCC’s decision in the case, says Ryan Dalziel, a partner in Norton Rose Fulbright Canada LLP in Vancouver, who represented the appellant City of Nelson in the case.
First, the SCC found that there is no requirement that the use of the true owner be inconsistent with that of the squatter for the purposes of adverse possession law in B.C. So, as the British Columbia Court of Appeal found, there is no inconsistent use test in B.C.
“The classic elements of adverse possession were all that is required in B.C.,” Dalziel told Legal Feeds, namely that the act of possession must be “open and notorious, adverse, exclusive, peaceful (not by force), actual (generally), and continuous.”
Second, the BCCA had found fault with the trial judge in how he approached the evidence, which the Supreme Court took issue with.
“The evidence led by the Mowatts respecting the Coopers, Gouchers, and Thorpes [families that had occupied the land earlier] generally went to their occupation of the disputed lot,” Justice Brown wrote in today’s decision.
“No form of possession by any of them short of occupation during the ‘evidentiary gap’ [between 1916 and 1920] was posited to the chambers judge as being supported by the evidence. In short, the meaning of the two concepts essentially overlapped on the facts of this claim, and I see no error in the chambers judge’s application of the test for adverse possession arising from his occasional references to occupation.”
Third, Dalziel told Legal Feeds, the SCC found that the BCCA had erred in interfering with the finding of fact related to adverse possession in the case. The chambers judge had found that possession of the disputed land did not take place between 1916 and 1920, while the BCCA found that it did.
“I acknowledge that the Court of Appeal’s finding of fact that adverse possession of the disputed lot was continuous from December 1909 to at least February 1923 is not unreasonable,” Justice Brown wrote.
“It is certainly possible to weigh parts of the evidence differently than the chambers judge did. The possibility of alternative findings based on different ascriptions of weight is, however, not unusual, and presents no basis for overturning the findings of a fact-finder. It is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence.”
As for the broader implications of today’s judgment, “I think it sends a strong signal,” Dalziel says, to jurisdictions such as Ontario and Nova Scotia that have used the inconsistent use test, that “those authorities are of questionable value, without expressly so deciding.
“There’s a strong signal that the more … ‘true owner’-friendly approach taken in Ontario and Nova Scotia is questionable.” The SCC “said [the inconsistent use test] is not the law of B.C., but I think the logic will probably extend across the country.”
Ontario judge rebuked for ending day early as delays pile up, Globe and Mail
Calgary woman pleads guilty in 2014 death of her nine-year-old daughter, Canadian Press
Triple murderer Douglas Garland to be sentenced today in Calgary court, Canadian Press
U.S. Supreme Court to set guidelines for Trump treatment of non-citizens, Reuters
Trump choice for national security adviser turns down offer: WH official, Reuters
Unilever rejects US$143-billion Kraft Heinz bid as without merit, Reuters
Malaysia won't release Kim Jong Nam's body until it gets kin's DNA, Reuters
Netanyahu leaves role as communications minister after police probe, Reuters
|Nathaniel Lipkus and Bradley White represented Mylan Pharmaceutical in the case involving a commonly used anti-inflamatory drug.|
AstraZeneca Canada Inc v. Mylan Pharmaceuticals ULC. It is the first ruling on the validity of the Vimovo formulation patent anywhere in the world.
The naproxen-esomeprazole combined drug is used for patients with arthritis who might have some risk of side effects with their stomach.
The drug is used for osteoarthritis, rheumatoid arthritis and ankylosing spondylitis — a form of spinal arthritis. It is one of the most heavily prescribed class of drugs on the market.
While separately naproxen and esomeprazole were already generically available, some patients might be prescribed two pills to take but not always follow through to take them together. Now they can get what they need in one pill and for less cost. The generic version should be on the market imminently.
Similar patents are currently being litigated in the United States.
Although naproxen and esomeprazole are both generic drugs in Canada, the Vimovo patent enabled AstraZeneca to charge a higher price for its combination product.
Mylan was arguing that the formulation patent was obvious in view of the prior art and what was out there, while AstraZeneca was saying the formulation was inventive.
The court found the combination formulation to be obvious given prior art and common general knowledge.
Bradley White, partner at Osler Hoskin & Harcourt LLP who led the case for Mylan, says the two components of the drug — naproxen and esomeprazole — were already genericized products.
“What the patent in this particular case covered was a formulation that combined these two products together into a single dosage and it was that formulation they asserted was inventive,” he says.
“The fact these two components were already generically available, it really seemed like a formulation patent that had been put in place that would permit the brand company to charge brand prices for something that to some extent was already being done.”
The case turned specifically on the expert evidence filed in this case, says White.
In the decision, Justice Alan Diner wrote: “I agree with Mylan that this combination was an example of illustrating the prior art.”
“Overall, it’s clear the courts favoured our evidence,” says White. “We were saying all these various elements of this particular formulation were known in the prior art and, therefore, it would have been obvious to the person to bring the various pieces of the prior art together along with common general knowledge to arrive at the invention.”
It is common for patent holders to try to combine their drug with another drug and see if there is a way to extend their patent protection.
“In this case, we had a very decorated clinician who said these drugs are being combined in the clinic all the time and there isn’t really anything special about putting them together,” says Nathaniel Lipkus, partner at Osler who was on the team with White for Mylan.
AstraZeneca argued the way it formulates the drug is special, but through the evidence, Mylan was able to demonstrate the way AstraZeneca did it was something that had already been done before.
“When you added it all up, there wasn’t an inventive contribution,” says Lipkus.
He says one of the things judges have a difficult time doing is stepping into the shoes of the scientist confronted with this problem.
“Our formulators did a great job helping the judge step into those shoes and explain that ‘we know how to formulate these drugs together and there are pre-existing formulations that look exactly like this, just with different drugs’ and the judge was clearly persuaded by that evidence,” says Lipkus.
There is still an opportunity for AstraZeneca to commence an infringement proceeding against Mylan upon launch of the generic version of the drug.
Trudeau tells European Union: The world needs you, Reuters
RCMP chastised for poor reporting in missing-persons cases, Canadian Press
Calgary jury determining fate of triple-murder suspect, Canadian Press
Lawmakers push for answers on Trump team's Russia ties, Reuters
U.S. border town confronts possible import tax, Reuters
Malaysian police arrest third suspect in murder of Kim Jong Un's half-brother, Reuters
Netanyahu's far-right allies hail U.S. shift on 'two states', Reuters
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