Federal Court of Appeal hears patent, disability, internet rate cases

This week, the Federal Court of Appeal tackled cases regarding final rates for internet services, patented medicines, pension disability benefits, and accommodation requests. The Federal Court also held hearings in matters dealing with a grant application and alleged sexual battery.

Federal Court of Appeal

The appellate court heard TekSavvy Solutions Inc. v. Bell Canada et al, A-299-21 on Monday. Here, certain cable carriers filed applications to review, vary, or rescind a 2019 order of the Canadian Radio-television and Telecommunications Commission under s. 62 of the Telecommunications Act, 1993. In 2021, the commission granted the applications and reversed the 2019 order relating to the final rates for aggregated wholesale high-speed access internet services.

On appeal, TekSavvy Solutions Inc. argued that the commission should have determined the final rates based on a full review and assessment of costing inputs and methodologies. The commission allegedly failed to fulfill its duty to determine just and reasonable rates under s. 27(5) of the Telecommunications Act.

Get to know the basics of the Telecommunications Act of Canada and its provisions regulating Canadian telecom companies.

On Tuesday, the appellate court heard the similar cases of Apotex Inc. v Janssen Inc. et al, A-59-23 and Apotex Inc. v Janssen Inc. et al, A-60-23. Here, Pharmascience Inc., Dr. Reddy’s Laboratories Inc., and Dr. Reddy’s Laboratories Ltd. sued Janssen Inc., Janssen Oncology Inc., and BTG International Ltd. (collectively, Janssen) under s. 8 of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 in relation to their abiraterone acetate drug products.

Janssen filed a motion against Apotex Inc. for documentary production under r. 233 and oral discovery under r. 238 of the Federal Courts Rules, SOR/98-106. On appeal, Apotex claimed that the relief sought under rr. 233 and 238 engaged the implied undertaking rule and that Janssen breached this rule.

Also on Tuesday, the appellate court dealt with the related appeals in Pauline Milner v. Attorney General of Canada, A-16-21 and Pauline Milner v. Attorney General of Canada, A-178-20. The dispute arose when the federal Social Security Tribunal’s appeal division denied the applicant’s Canada pension disability benefits.

The tribunal failed to consider the applicant’s mental health state during and before the hearing and wrongly found that the applicant could have asked for more time to gather medical information through an adjournment, the judicial review application alleged.

The tribunal also made legal and factual errors, breached natural justice and/or procedural unfairness, acted unfairly, and discriminated against the applicant under s. 15(1) of the Canadian Charter of Rights and Freedoms, the applicant asserted.

On Wednesday, the appellate court heard Simon Mackey v. Attorney General of Canada, A-320-21. This case arose from the termination of the applicant, who worked for the Correctional Service of Canada for 12 years. An adjudicator for the Federal Public Sector Labour Relations and Employment Board confirmed the termination for cause.

The judicial review application sought to quash the adjudicator’s decision. The employer did not have sufficient grounds for termination and did not appropriately apply the concept of progressive discipline, the applicant contended.

Also on Wednesday, the appellate court tackled the appeal in Kevin Haynes v. Attorney General of Canada, A-125-20. Here, the applicant challenged the denial by a judge of the Federal Court of two requests for accommodation due to the applicant’s disability, autism.

Federal Court

On Monday, the Federal Court heard Anton Oleynik v. Attorney General of Canada, T-2361-22. The applicant was a tenured professor at Memorial University of Newfoundland and Labrador who was on leave without pay. The applicant asked for mandamus to compel the Social Sciences and Humanities Research Council to process his 2022 Insight Grant application.

Canada’s attorney general opposed this. It argued that the application had no possibility of success because it did not fulfill the condition precedent requiring the academic institution to be the one to submit the application. The Federal Court struck the application, which prompted the present filing.

On Tuesday, the court dealt with the class action of Sylvie Corriveau v. His Majesty the King, T-138-19. Here, the plaintiff asked for general, punitive, and special damages for the RCMP’s alleged systemic failures. The RCMP’s leaders failed to act on the misconduct of certain designated physicians despite knowing about it, interfered with investigations, and covered up and condoned the doctors’ actions, the plaintiff said.

These physicians abused their power, committed sexual assault and battery against the class members, and subjected them to improper and invasive procedures at medical examinations, which were the final step before RCMP applicants could join the force, the plaintiff added.