Law Times - Newsmakers

Top cases from the Supreme Court Promise doctrine, religious freedoms and duty to consult among top issues BY ELIZABETH RAYMER, FOR LAW TIMES This year's basket of Supreme Court of Canada de- cisions provided guidance on legal matters ranging from fights against online giants in matters of juris- diction, to Canada's long-held "promise doctrine" in patent law (which it found to be unsound), to the duty of the Crown to consult First Nations, and reli- gious freedoms, and to criminal cases that affirmed the SCC's 2016 ruling in R. v. Jordan and set the re- cord straight on bail requirements. Google Inc. v. Equustek Solutions Inc. and Douez v. Facebook Both cases concerned online technology giants based in California and the issue of jurisdiction. In both cases the smaller actor — a small British Columbia-based business, and a Facebook user in the same province — was successful in their fights against the behemoths. During the appeal of Google, the SCC heard from more than 30 interveners from as far away as South Korea. The case concerned a small tech company, Equustek, a maker of industrial communications systems, which had gone to great lengths to stop a company called Datalink from selling pirated Equustek products under its own brand. After the counterfeiter ignored a series of court orders, the Supreme Court of British Columbia issued an interlocutory injunction requiring Google to remove the Datalink websites from search results in Canada and around the world. Google appealed the case to the Supreme Court of Canada, which delivered a deci- sion on June 28 that upheld the B.C. injunction. (In July, Google filed suit in the United States District Court for the Northern Dis- trict of California to prevent the order from being enforced in the United States, and a judge of the court granted Google's motion for primary relief. The SCC's order will stand in Canada and elsewhere outside the United States.) The Equustek case is noteworthy for the authority of a state's courts to prevent the extraterritorial dissemination through the internet of information it deems harmful to its own citizens or corporations, and the circumstances under which courts in other jurisdictions may or may not recognize the enforceability of such orders. Douez was a British Columbia-based class action certified in May 2014 against Cali- fornia-based Facebook for alleged privacy breaches. Facebook appealed the B.C. courts' decisions in favour of lead plaintiff Deborah Douez on the basis of the forum selection clause in Facebook's user policy. In a split decision, the majority found in June that s. 4 of the Privacy Act lacked the clear language needed to override the forum selection clauses, that Facebook's forum selection clause in its terms of use was unenforceable and that the case against Facebook could indeed proceed in Canada. AstraZeneca Canada Inc. et al. v. Apotex Inc. et al. In a case that pitted two pharmaceutical giants against each other, the SCC ruled at the end of June that Canada's so-called promise doctrine was unsound, a decision with a significant impact for patent law. The patent related to the "optically pure salts of esomeprazole," used in treating ail- ments such as increased secretion of gastric acid. AstraZeneca had filed a patent related to the drug, but generic pharmaceutical producer Apotex applied to the federal minis- ter of Health to sell its generic version. The minister gave notice of compliance to Apotex to sell the generic version of the drug, and AstraZeneca subsequently sued Apotex for patent infringement. Apotex re- sponded by trying to have the patent impeached. The Federal Court agreed with Apotex, finding AstraZeneca's patent to be invalid because "applying the promise of the patent doctrine," which under Canadian patent law requires an invention to meet a utility requirement in order to be patentable, "it promised more than it could provide." This decision was upheld by the Federal Court of Appeal. But the SCC found that the so-called promise doctrine was inadequate in determining "whether the utility requirement of s. 2 of the Patent Act is met," allowed AstraZeneca's appeal and ruled its patent is valid. "The precedential value [of the decision] is huge," Noel Courage, a partner at Bere- skin & Parr LLP in Toronto, said after the decision was released. "The Supreme Court of Canada decisively swept a lot of bad, conf licting case law from lower courts into the legal dustbin of history. We have a lot more certainty now that technical legal attacks on utility of a patent generally cannot invalidate the patent." Clyde River (Hamlet) v. Petroleum Geo-Services Inc., Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. and Ktunaxa Nation v. British Colum- bia (Forests, Lands and Natural Resource Operations) Several appeals by First Nations, in disputes with a resource company, pipeline operator and developer, had their appeals heard and dismissed by the SCC in 2017. Companion decisions in Clyde River and Chippewas, issued by the SCC this past summer and attempting to clarify the threshold of the Crown's "duty to consult" with aboriginal groups and the jurisdiction of the National Energy Board, were generally greeted favourably by proponents seeking approval for new energy projects and by in- digenous groups wanting to protect their traditional rights. The unanimous rulings in the two cases came to different conclusions as to whether the duty to consult had been met, but they provided clarity on how to proceed in the future, according to Martin Ignasiak, a partner in the Calgary office of Osler Hoskin & Harcourt LLP. "These decisions will reduce a lot of the arguing around the edges about the process," said Ignasiak, who is national co-chairman of the firm's regulatory, environmental, ab- original and land group. The SCC concluded that the Crown did not meet its duty to consult in terms of proposed offshore seismic testing off Baffin Island in the Clyde Riv- er project. It overturned the decisions of the Federal Court of Appeal and quashed the authorization granted by the NEB. In the Enbridge case, involving a proposal to modify a section of a pipeline in southwestern Ontario, the NEB authorization was upheld and the court found that the duty to consult was met. The SCC also found that, although an NEB decision will on its own trigger the duty to consult, the Crown may be able to rely on the regulator's process, in whole or in part, to fulfil its duty. The third case, Ktunaxa, introduced the element of religious freedom. In a unanimous decision, the SCC dismissed the appeal of a First Nation in British Co- lumbia that argued a large ski resort, to be built on land it considers sacred, would breach its right to freedom of religion under s. 2(a) of the Charter. In the 1990s, Glacier Resorts Ltd. sought government approval to build a year-round ski resort in Qat'muk. The Ktunaxa were consulted and raised concerns about the im- pact of the project, and the resort plan was changed to add new protections for Ktunaxa interests. In 2009, the Ktunaxa said that accommodation was impossible because the project would drive Grizzly Bear Spirit from Qat'muk and irrevocably impair their re- ligious beliefs and practices. After efforts to continue consultation failed, the B.C. minister of Forests, Lands and Natural Resource Operations approved the project. The Supreme Court found that the Constitution's religious freedom guarantee does not require the state or courts to protect the "object of beliefs or the spiritual focal point of worship, such as Grizzly Bear Spirit," and dismissed the appeal. Peter Grant of Grant Huberman in Vancouver, who acted for the appellants, ex- pressed disappointment. "This decision says, don't come to us for protection of your spiritual rights," he said. "Effectively [the court is] saying to indigenous people, if you have a spiritual practice whose object requires protecting a piece of land, don't come to us under s. 2(a)" of the Charter. R. v. Cody In this case, which followed on the Supreme Court's 2016 decision in R. v. Jordan, the court reiterated its earlier call for justice system reform. The accused had been charged with trafficking marijuana and cocaine, and posses- sion of a prohibited weapon and breach of probation, but the charges were stayed by the trial judge on the basis of unreasonable delay. Sixty months and twenty-one days had elapsed between the time the charges were laid and the anticipated end of the appellant's trial, and the Crown appealed. Applying the recent decision of Jordan, a majority of the Court of Appeal allowed the appeal and remitted the matter for trial. But the SCC applied the Jordan framework, which set presumptive ceilings on the length of criminal cases in provincial and superior courts, and unanimously ordered a stay of proceedings against the accused. "The delay in this case was unreasonable and therefore, C's right under s. 11 (b) of the Charter was infringed," wrote the seven-member panel of the Supreme Court in its decision dated June 16. The SCC found that the Court of Appeal had erred in its application of Jordan. From the time Cody was charged until his five-day trial was scheduled to begin, five years had passed. The Crown, the defence and the system each contributed to that delay, the court found. R. v. Antic In a noteworthy criminal case, the SCC ruled in June — in a case which saw an Ontario man required to put up a cash bail in addition to a surety — that cash bails cannot be de- manded of accused except in the limited circumstances outlined in the Criminal Code. In Antic, the SCC allowed the Crown's appeal and affirmed s. 515(2) of the code, which a bail review judge of the Superior Court of Justice had struck down as uncon- stitutional. That section of the code permits a justice of the peace or judge to require both a cash deposit and surety supervision only if the accused is not ordinarily a resident of the charging jurisdiction, or lives more than 200 kilometres away. Kevin Antic, who was arrested and charged with drug and firearms offences, did not meet that criteria, yet was still required to put up a cash bail. The bail review judge had held that s. 515(2) of the code violated the right not to be denied reasonable bail without just cause because it had the effect of denying bail to the accused. But the Supreme Court found that it was the bail review judge's misapplication of the bail provisions that did so; and in requiring cash bail of the accused in addition to a surety, the bail review judge effectively reintroduced cash bails to the justice system. Changes made to the bail system in 1972 largely removed cash bails in order not to further disadvantage the poor and marginalized who comprise the bulk of those pass- ing through the criminal justice system, said Jonathan Shime of Cooper Sandler Shime & Bergman LLP in Toronto, who acted for the intervener Canadian Civil Liberties As- sociation in the case. "The bail system is similar to the justice system in that it significantly disadvantages the poor, First Nations, black and homeless communities," said Shime. "Reintroducing cash bail isn't the solution; it would only serve to aggravate those discriminatory effects. The Supreme Court understood that . . . I think they readily . . . agreed that bail courts in Canada need a reminder as to how bail courts are meant to work." top stories 16 December 2017 Jonathan Shime says an SCC case illus- trates how the 'bail system is similar to the justice system in that it significantly disadvantages the poor, First Nations, black and homeless communities.'

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