Federal Court tackles copyright, election, retirement pension, forum selection clause matters
This week, the Federal Court of Appeal dealt with appeals filed against the Crown, Canada’s health and justice ministers, and the president of the Canada Border Services Agency. The appellants alleged intellectual property infringement and claimed tax deductions.
Federal Court of Appeal
On Tuesday, the court heard Janssen Inc. v. The Minister of Health et al, A-192-23. The appellant sought to set aside the minister’s decision that a patent was ineligible for listing on the register against two submissions for a specific drug.
The appellant asked the appellate court to quash s. 4(6) of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 for being ultra vires the authority that the Patent Act, 1985 granted to the governor general in council.
On Wednesday, the court heard the cases of Remington Sales Co. v. President of the Canada Border Services Agency et al, A-162-22 and Hyundai Canada Inc. v. President of the Canada Border Services Agency et al, A-163-22, which arose from proceedings to decide the correct export prices of imported large power transformers for the purpose of determining anti-dumping duty assessments.
Also on Wednesday, the court heard Sheldon Blank v. The Minister of Justice and Attorney General of Canada, A-213-21. The appeal wanted to set aside an order regarding an application under s. 41 of the Access to Information Act, 1985.
The appellant alleged that the judge legally erred by allowing the respondents to confidentially file records over which they were no longer claiming privilege and by failing to determine whether the proposed confidential affidavit was overbroad.
On Thursday, the court will hear Potash Corporation of Saskatchewan Inc. v. His Majesty the King, A-160-22. The appellant, which produces and sells potash from its Saskatchewan mine facilities, challenged the Tax Court of Canada’s dismissal of its appeal from notices of reassessment, which refused the deduction of a tax paid to the Saskatchewan Crown.
Federal Court
On Monday, the court heard the cases of Xavier Moushoom et al v. The Attorney General of Canada, T-402-19; Assembly of First Nations et al v. His Majesty the King, T-141-20; and Assembly of First Nations et al v. Attorney General of Canada, T-1120-21.
In the underlying class proceedings, the plaintiffs alleged harms caused by the discriminatory provision of child and family services and essential services to First Nations’ children and families over several decades. The parties settled these proceedings.
The plaintiffs requested an order implementing a standardized protocol for non-class counsel legal professionals seeking to provide paid services to class members in submitting a claim in the settlement. On Nov. 7, in Moushoom v. Canada (Attorney General), 2023 FC 1479, the Federal Court approved the protocol in a specified form.
Also on Monday, the court heard Davood Khodaverdi v. Attorney General of Canada, T-1597-22. A judicial review application questioned a decision finding the self-employed applicant ineligible for the Canada Recovery Benefit based on the income requirement.
On Tuesday, the court heard Serge Simon v Mohawk Council of Kanesatake, T-562-23. The applicant asked the court to review an appeal board’s decision invalidating his election as a chief of the Mohawk Council of Kanesatake. The applicant filed a motion for interim relief.
Last May, in Simon v. Mohawk Council of Kanesatake, 2023 FC 668, the Federal Court stayed the decision of the appeal board such that the election results would remain in effect until the final determination of the judicial review application.
On Wednesday, the court heard QSL Canada Inc. v. Cleveland-Cliffs Inc., T-247-23. The dispute arose from stevedoring services that the plaintiff provided to the defendants at the Port of Quebec.
On Oct. 26, in QSL Canada Inc. v. Cliffs Mining Company, 2023 FC 1429, the Federal Court dismissed the motion to strike the pleadings. The court was unable to find that the contractual forum selection clause presented by defendant United States Steel Corporation bound the parties or that the Pennsylvanian courts served as a more appropriate forum.
Also on Wednesday, the court heard Galderma Canada Inc. v. Attorney General of Canada, T-906-20. A judicial review application challenged the Patented Medicine Prices Review Board’s decision ordering the applicant to file prescribed pricing information for a certain medicine for the period between Jan. 1, 2010 and Mar. 14, 2016.
In January 2022, in Galderma Canada Inc. v. Canada (Attorney General), 2022 FC 19, the Federal Court partly granted Canada’s motion to strike three affidavits filed by the applicant in this proceeding.
On Thursday, the court will hear Bell Media Inc et al v. Marshall Macciacchera et al, T-1257-22. The plaintiffs alleged that the defendants infringed their copyright and developed, launched, operated, maintained, promoted, and sold subscriptions to unlawful Internet services.
Last June, in Bell Media Inc. v. Macciacchera (Smoothstreams.tv), 2023 FC 801, the Federal Court found the defendant in civil contempt of some provisions in certain court orders.
Also on Thursday, the court will hear Linda Bartlett v. The Attorney General for Canada et al, T-863-23. A judicial review application questioned a decision of the Social Security Tribunal’s appeal division and alleged an administrative error in the calculation of the applicant’s retirement pension.
On Friday, the court will hear Gilead Sciences, Inc.. et al v. JAMP Pharma Corporation, T-1484-22. The defendants, who allegedly infringed the plaintiffs’ patent, requested an extension of time to conduct inter partes testing in the context of proceedings brought under the Patented Medicines (Notice of Compliance) Regulations.
Last August, in Gilead Sciences, Inc. v. Jamp Pharma Corporation, 2023 FC 1141, the Federal Court granted an extension of time to conduct differential scanning calorimetry testing relating to the determination of the melting point.
