Cases scheduled at Federal Court this week involve vaccination and trademarks
This week, hearings scheduled before the Federal Court of Appeal and Federal Court included issues relating to the Accessible Canada Act, Accessible Transportation Planning and Reporting Regulations, Industrial Design Act, Trademarks Act, and Canadian Charter of Rights and Freedoms.
The appeal court set Air Canada v. Rose et al, A-354-23 on Nov. 26, Tuesday. This appeal challenged a Canadian Transportation Agency decision. The appellant claimed that the agency erred in law and acted outside its jurisdiction when it made an order imposing content in its accessibility plan.
The appellant also alleged that the agency lacked the power under the Accessible Canada Act, 2019 and/or under the Accessible Transportation Planning and Reporting Regulations, SOR/2021-243 to make this order.
The appeal court scheduled the consolidated cases of Double Diamond Distribution Ltd v. Crocs Canada Inc et al, A-102-23 and Double Diamond Distribution Ltd. v. Crocs Canada, Inc. et al, A-249-22 on Nov. 29, Friday. This appeal challenged a Federal Court order allowing the respondents’ action for infringement of an industrial design for a shoe.
The appeal alleged that the Federal Court made errors in applying the Industrial Design Act, 1985 and the informed consumer test and in assessing the design and the prior art that the appellant presented. The court also allegedly erred in finding that the appellant committed infringement and that the respondents met the burden of proof for infringement.
The court set Albert et al v. Canada Post Corporation et al, T-1436-22 on Nov. 26, Tuesday. The underlying claim against Canada Post’s mandatory vaccination practice alleged that Canada’s Oct. 6, 2021 news release amounted to an order requiring mandatory vaccination or the disclosure of vaccination status under threat of administrative and/or disciplinary measures.
The order allegedly breached the plaintiffs’ human rights and their rights under ss. 2(a), 7, and 15 of the Charter. The order also allegedly made Canada Post an agent of Canada in implementing public health and economic policies. The defendants – Canada and Canada Post – moved to strike the plaintiffs’ claim.
Last Mar. 13, in Albert v. Canada Post Corporation, 2024 FC 420, the Federal Court allowed the motions of the defendants and struck the plaintiffs’ claim without leave to amend. As regards the claim against Canada, the court ruled that the material facts failed to establish a relationship between Canada and the plaintiffs.
Regarding the plaintiffs’ claim against Canada Post, the court held that they failed to support their argument that the grievance processes were inadequate and failed to show any real deprivation of a remedy that would allow the court to exercise its residual discretion to take jurisdiction
The court scheduled Remitbee Incorporated v. Remitly, Inc., T-2621-23 on Nov. 26, Tuesday. This case arose when the applicant, a Canadian corporation facilitating money transfers using software as a service, filed a trademark application for a specific mark. The respondent, a U.S. company offering money transfer services, opposed the registration of this mark.
The Trademarks Opposition Board determined that the applicant failed to demonstrate use of the mark during the relevant period. Any use of the mark by third party Thamor Trading Corporation did not benefit the applicant, given the lack of a licensing arrangement, the opposition board said.
The respondent moved to summarily dismiss the applicant’s appeal under the Trademarks Act, 1985, which was allegedly doomed to fail. Last July 30, in Remitbee Incorporated v. Remitly, Inc., 2024 FC 1211, the Federal Court denied the motion of the respondent for lack of merit.
The questions of whether the applicant’s use of the mark was legal and whether there was a licensing arrangement that would permit Thamor’s use of the mark to benefit the applicant were debatable issues concerning the appeal’s substantive merits, the court said.
The court set The Toronto-Dominion Bank v. Dyas et al, T-886-21 on Nov. 26, Tuesday. This case involved a trademark infringement action commenced in June 2021. The parties expressed interest in a dispute resolution conference in 2023 and participated in mediation last March.
When settlement was not imminent, the plaintiff wrote the court last July to request the setting of a trial date and gave a proposal for a timetable for the proceeding’s next steps leading to a trial. Last September, the defendant notified the plaintiff and the court of an intention to move for summary trial.
Last Oct. 21, in Toronto-Dominion Bank v. Dyas (TD Benefits), 2024 FC 1651, the Federal Court refused the request of the defendant to schedule a summary trial. The defendant failed to show that proceeding via a summary trial would be more efficient and would save time and cost, the court explained.
