Jun 1, 2000
Canadian Judicial and Legislative Update, Year 2000
by Gary Dunn

SUMMARY

This paper provides a review of selected legislative and judicial activity, primarily relating to trademarks and copyright and the Internet. It is not intended to provide an exhaustive, or even comprehensive, review of Canadian litigation decided in 1999. Additionally, where changing circumstances appear to add to the relevance of certain cases decided late in 1998 and early 1999, reference has been made to them, too.

The paper goes on to discuss recent activity relating to a variety of areas of law, including privacy, criminal, anti-trust, and choice of law, with the intention of highlighting potential legal issues relating to the Internet.

At the same time, the paper implicitly draws attention to the fact that subtle (and often significant) differences exist between U.S. and Canadian law.

In recognition of the need for "just in time" information, the paper includes endnotes of links to Internet sources providing Canadian legal information.

TRADE-MARKS

Legislation

No new legislation is on the horizon. There is no clear indication if Canada will take legislative action with respect to Internet related issues.

Full electronic filing is on the horizon.

Judicial Activity

In comparison to the volume of litigation occurring in our neighbour to the south, judicial activity in Canada during the past year has been minimal.

The Federal Court took the opportunity to clarify for Canada Post Corp., a Crown corporation, that it could not prevent everyone from registering a trademark containing the word POST . Previously, the Registrar has refused at the behest of Canada Post to register trademarks containing the word e-mail.

In Bell Actimedia Inc. v. Puzo , the Federal Court granted an injunction restraining the defendants from using a domain name that was the same as a registered trademark.
Whether the mere use of a domain name constitutes “use”, creates confusion or depreciates the goodwill of a trade-mark, entitling a trade-mark holder to an interlocutory injunction depends heavily on the facts of each individual case. It was a question before the courts as a result of a dispute between an established Canadian television broadcaster and a relatively new Internet "netcaster". ITV Technologies, Inc. carries on the business of Internet broadcasting from Vancouver, B.C. using the domain itv.net. WIC Television Ltd. has operated, continuously since 1974, a television station in Edmonton, Alberta. WIC is the holder of two “ITV” trademarks, and also uses the domain itv.ca. ITV sought to have the WIC trademarks expunged, and in response WIC sought an interim, interlocutory and permanent injunction restraining ITV from using the domain itv.net. The Federal Court of Canada issued a temporary injunction in November, 1997 ordering ITV Technologies, Inc. to stop operating a web site with the Internet address itv.net. However, at the hearing of the application for an interlocutory and permanent injunction, the Applicant's request was refused - ITV Technologies, Inc. v. WIC Television Ltd. [1997] F.C.J. No. 1803 (FCCTD), DRS 98-02239, Court File No. T-1459-97. The court felt that there was no evidence of established, irreparable harm, and concluded at this point that WIC's harm appears merely speculative. The court was also encouraged to refuse the application based on ITV's undertaking to indicate clearly on its web site that it is not affiliated with CITV, to provide a link to the CITV web site, not to broadcast any productions of CITV or bearing the trade-mark ITV, and to maintain accounts or revenues and customers until the trial. Recently, ITV sought to have the defendant’s trademarks declared invalid, but the matter was referred to trial . It remains to be seen if “use” by ITV of WIC’s trade-marks will be found when the case is ultimately decided, or if WIC’s trade-marks will be invalidated because they are, among other things, descriptive of their service and not capable of registration.

The decision also effectively affirmed the difficulty of obtaining interlocutory injunctions based on the need to show irreparable harm, and the need for the balance of convenience to favour the applicant.

In the fast changing world of the Internet, two cases discussed when confusion and distinctiveness should be assessed. The Federal Court, in London Life Insurance Co. v. Manufacturers Life Insurance Co. , clarified that the relevant date for establishing confusion between a registered and proposed mark is the date of application for registration of the proposed mark. In American Assn of Retired Persons v. Canadian Assn of Retired Persons , the court confirmed that in opposition proceedings based on distinctiveness, the relevant date is the date of the filing of opposition proceedings.

In Greystone Capital Management Inc. v. Greystone Properties Ltd. the British Columbia Supreme Court added a level of complexity to the process of assessing the existence of confusion in cases of common law passing off . In short, the Court made a distinction between passing off claims based on the appearance of the goods, and claims based on the adoption of a trade name. While the Court felt that in cases of appearance the test was whether the goods would be interpreted as being those of the complainant, in cases of use of a trade name the test was whether the public may believe the companies are associated.

In Canada, public bodies can apply for trademarks without proof of distinctiveness or use. These marks are commonly referred to as s. 9 marks. They provide a formidable level of protection for a public body. The scope of s. 9 marks was limited in an unreported case decided in December, 1999 - Canadian Olympic Assn. v. Log-Motif Ltd. . Among other things, the court decided that the test for confusion with respect to an s. 9 mark is a “side-by-side comparison”, and not the “totality test” generally applied under s. 6(5). Additionally, the Court decided that if an owner is asserting a family of s. 9 trade-marks, it must prove that all marks in the family are in use before the court will assess whether the marks are confusing.

In an appeal from a decision of the Registrar, the Federal Court confirmed in Garbo Group Inc. v. Harriet Brown & Co a trend towards giving long standing boards and tribunals greater deference. While the court was willing to hear additional evidence, and felt that the Registrar may have been wrong in at least one point, it was unwilling to overturn the Registrar’s decision.

Welch Foods Inc. v. Cadbury Beverages Canada Inc. reminds us of the need for care when preparing restrictive covenants in licensing agreements . The plaintiff licensed the defendant to sell its products on the condition that the defendant would not sell other grape products under any other trademark. The defendant had supplied grape concentrates to another company to be used for grape products, and the plaintiff sought a declaration that it was entitled to terminate its licensing agreement. The court decided in favour of the defendant, on the basis that the defendant was neither “selling nor manufacturing” a grape product as contemplated by the license agreement.

As between parties having mutual interests in a trademark, the Court confirmed in Sommerville Design & Mfg. Inc. v. J Philp Humfrey International Inc. that the registration of the trademark in the name of one of the co-owners for the purpose of defeating the claim of a third party did not exclude the ownership rights of the other co-owner . The plaintiff manufactured saws and the defendant marketed them. Subsequent to the transfer of trademark rights to the defendant for the purpose of registering the trademark, the contractual relationship between the parties did not change. Their agreement provided that a defaulting party would forfeit its interest in the trademark. The defendant ceased carrying on business, leaving a substantial debt owing to the plaintiff. The defendant used the proceeds of liquidation to start another company instead of repaying the plaintiff, with the intention of destroying the plaintiff. The court awarded the trademark to the plaintiff pursuant to their original agreement.

The “quality control” theory was again contrasted with the “source” theory when the Federal Court found that the name of the owner of a trademark did not have to appear on the product in order to have the public equate the source of the goods with the trademark. In Jean Patou Inc. v. Luxo Laboratories Ltd. , decided late in December 1998, the Court refused to amend a trademark registration in a way that would have limited the description of wares that the trademark covered. The Court based its decision in part on its interpretation of s. 57(1) of the Trade-Mark Act, which gives the Court power to amend the register only if the trademark is subject to being expunged. The case also discussed whether the trademark was no longer distinctive given its use in combination with other word elements.

Finally, the case confirmed that it is not necessary for an owner to identify itself in conjunction with the use of the trademark provided that no public confusion resulted.
The Federal Court decided in 1999 that a proposed trademark Petro-Quebec was confusing with the well-known mark Petro-Canada . The case reminds us of a number of things, including the fact that the onus is on the applicant to show that there is no likelihood of confusion, and that in deciding opposition cases the Registrar feels that he is not bound by precedent and must decide each case on its own merits.

In Disney Enterprises Inc. v. Fantasyland Holdings Inc., the Federal Court took time to comment on the practice of the Trade-marks Office in not following stare decisis in opposition proceedings.

Practise

The Canadian Intellectual Property Office appears to continue to accept the argument that the addition of the suffix .COM adds distinctiveness to a trademark that is otherwise not capable of being registered.

THE CANADIAN DOMAIN NAME SPACE

The Internet Assigned Numbers Authority (IANA) has delegated to the .CA Domain Registrar the authority to issue top-level domain names with the suffix ".CA". The .CA domain name space has been organized on a geographic basis - for example, "domain".bc.ca. Current information on the domain space is available on the Internet .

A summary of current activities in the .CA domain name space is available on-line . Wishful thinking suggests an implementation of the proposed changes to the .CA domain space in the fall of 2000.

CIRA has now proposed that a dispute resolution process be implemented for the domain name space. CIRA is seeking public input on a number of principles that will form part of the dispute resolution policy. Details are available on the Internet.

For a more detailed reference to the proposals, I make reference to my paper presented to the Pacific Computer Law Institute in May 1998 entitled Canadian Legislative and Judicial Updates.

COPYRIGHT

Tariff 22

The Canadian Copyright Board is authorized to determine tariffs for collective bodies that operate licensing schemes authorized pursuant to the Copyright Act. In October 1999 its first decision with respect to Internet activities was released, commonly referred to as Tariff 22. The decision is presently under appeal by Time Warner, an intervener, and SOCAN, the original applicant.

The Society of Composers, Authors and Publishers of Music of Canada (SOCAN) filed a tariff claiming the right to collect royalties from parties that post content on the world wide web. SOCAN proposed to administer the tariff by collecting royalties from ISP’s, as opposed to the more expected approach, which would charge the persons posting the content.

The Copyright Board decided to consider the issues in two parts. Firstly they would decide the legal issues, and then they would determine the appropriate rates and parties to be charged. This decision relates to Part I.

The significant Part I findings are:

1. A communication occurs in Canada only when the communication originates from a server in Canada. The Board acknowledged that it was open to argue that content posted outside of Canada but aimed at Canada may constitute communication.

2. A person that makes a work available on the Internet authorizes its communication. Specifically, a person who posts content is deemed to have authorized the communication of the content.

3. While a hyper link is not in itself a communication, if the work can be played without further action by the user the provider of the link will be taken to have authorized the communication.

4. A work is communicated only when actually served up, and not when it is posted.

5. The exemption from liability for those providing “means of communication” should be interpreted broadly, and would include an ISP. The Board felt that there are instances where an ISP would be liable for copyright infringement, such as where it posts content, acts with others to do so, etc.

6. Musical works are communicated over the Internet even though the communication is subjected to technology such as compression.

7. The communication of works to individuals for use in individual settings is a communication to the public.

8. Internet transmissions are communications by telecommunication.

The Board decision with respect to Tariff 22 also includes some interesting references relating to whether an embedded or user activated link would effect the obligation to pay licence fees. And lastly, the Board concluded that a link to a server located outside of Canada would not trigger an obligation to pay license fees.

Judicial Activity

Following a ferocious legal challenge iCraveTV.com Inc. ceased re-broadcasting television signals in Canada. Interestingly, the Canadian Association of Broadcasters are now pressing Parliament to amend legislation to explicitly prevent what iCraveTV.com Inc. was doing. Notwithstanding that iCraveTV.com Inc. capitulated, many believe that its conduct was legal provided that it paid the current tariff of $0.70 per month per subscriber for re-broadcasting non-local television.

In Shewan v. Canada (Attorney General), the courts decided that a slogan, which contained words similar to a phrase in a song were in fact an idea, and not capable of copyright protection . The Court based its decision that there was no substantial similarity in part on the fact no music from the song was used.

The Vancouver Canucks fared better in the courtroom, when a designer who claimed that their logo was a colourable imitation of the plaintiff’s work sued them . The court confirmed that the prima facie presumption of copying which arises from substantial similarity can be refuted by evidence of independent creation.

Journalists are pursuing the Thomson Corp. in a class action alleging breach of copyright. While as yet untried, a motion dealing with the certification of the class is reported . The plaintiffs object to the defendant’s electronic distribution of their work that was originally submitted by the plaintiffs for publication in print journals. The defendant claims a contractual norm, which sounds suspiciously like an allegation of custom, in support of its conduct. The case is also interesting in that the plaintiffs are claiming that the holding company of the defendant subsidiaries is liable to satisfy damages that may be awarded. The Court refused to dismiss the claims against the holding company.

In an interesting turn of events, Law Post has attempted to force the province of New Brunswick and its Courts to give it access to court decisions and legislative documents. While still undecided, a reported motion, which records the removed of the Courts from the action, is available. In short, the decision confirmed that judicial immunity exists when the court is acting in its judicial capacity.

Hager v. ECW Press Ltd. reminds us of the difference between the fair dealing provisions in Canadian legislation and the fair use provisions applicable to U.S. copyrights . The defendant copied substantial portions of chapters of a book written by the plaintiff about Shania Twain. The court decided that the material copied went far beyond a recitation of factual interviews (which would not enjoy copyright protection) and that the use made of the plaintiff’s work was not for the purpose of criticism or research.

CONTRACTS

The ability to rectify a contract based on mutual mistake was tested in Redwood Music Ltd. v. Bourne Estate . In the course of resolving the ownership of various copyrights, the parties made a mutual mistake with respect to the effect of German law. In light of the intention of the settlement agreement to resolve all issues, the Court felt that the Defendant had accepted the risk of mistake in agreeing to a full release in the settlement agreement.

The enforceability of a click wrap contract providing for choice of law was adjudicated in the Ontario courts in Rudder v. Microsoft . Rudder attempted to have a class action certified against Microsoft with respect to the MSN service. Subscribers agreed that the exclusive forum for dispute resolution was Washington State. The Court found the click wrap contract enforceable and stayed the action.

INJUNCTIONS

Although decided in 1998, the Court in Cybertap Inc. v. Istar Internet Inc. confirmed its willingness to grant a mandatory injunction compelling an ISP to continue to provide connection services where invoices were in dispute and the parties’ agreement provided that service could be disconnected on 5 days notice of default. Several factors mitigated in favour of the plaintiff.

INSOLVENCY

Re Lawrason’s Chemicals Ltd. reminds one to be extremely careful when transferring intellectual property owned by an insolvent. Simply put, a lender had a secured charge over a trademark owned by the now insolvent corporation. Prior to the insolvent declaring bankruptcy, the trademark was transferred to the lender in partial satisfaction of the debt. The Court declared the transfer void pursuant to local fraudulent conveyances legislation and restored the parties to their respective positions before the transfer. On appeal, the Court declared that although the transfer was void against third parties, it was not void as between the parties. The effect of this was that the lender was deemed to have given up its secured interest in the trademark, leaving it to claim as an unsecured creditor with respect to the proceeds of the sale of the mark.

JURISDICTION/CONFLICT OF LAWS

In Canada, the ability to commence civil proceedings and serve process outside of the jurisdiction is governed by provincial rules of civil procedure, and in the case of the Federal Court, the Federal Court Rules. Often, the outcome is based on whether the party is carrying on business in the jurisdiction. Guidance from the case law with respect to the meaning of “carrying on business” is suspect, however, given the growth of the Internet.

In Braintech Inc. v. Kostiuk, the Court of Appeal of British Columbia made it clear that it was not prepared to enforce a judgement for defamation obtained in Texas against a B.C. resident . The plaintiff is a Nevada corporation controlled from British Columbia. It alleged that the defendant had published defamatory material about it on an Internet accessible bulletin board. The defendant did not defend the action commenced by the plaintiff in Texas. The plaintiff successfully (and summarily) obtained enforcement of its default judgement in British Columbia. On appeal, the Court found that there was no substantial connection to Texas, and that the appropriate forum for resolving the dispute was B.C. The Court felt that the mere possibility that someone in Texas might have read the material was insufficient to constitute the real and substantial connection required for jurisdiction. The Court made it clear that it felt that to do otherwise would encourage litigation wherever the Internet was available. The Supreme Court of Canada declined to hear an appeal by the plaintiff.

The American Bar Association Internet Jurisdiction project has now made available the first round of drafts of the nine working groups . Professor Michael Geist of the University of Ottawa Law School chairs the sale of services working group.

ARBITRATION

The Court had the opportunity to adjudicate on the enforceability of an arbitration clause in Simmonds Capital Ltd. v. Eurocom International Ltd. . The defendants moved to stay an action alleging trademark and copyright infringement on the basis that an arbitration clause in a licensing agreement governed the resolution of disputes. The Court decided that the majority of the dispute did not arise as a result of the agreement, in that the claim was for infringement of copyright and trademark rights. The Court also indicated that it was willing to grant a stay only where it could apply to all parties. In short, only the small portion of the claim relating to the breach of the licensing agreement was stayed in favour of arbitration.

TAXES

Payments made to non-residents of Canada are not subject to withholding taxes if they are in respect of the reproduction of literary works. Angoss International Ltd. v. R. confirmed that computer software source code was covered by the applicable exemption.

The deductibility of expenses was adjudicated on in Phillips v. R. , reminding us to be careful when structuring relationships relating to the commercialization of intellectual property – in this case copyrights. The taxpayer’s right to income was decided to be based on the ownership of the copyright in a song, and not as a result of any right to the income of the band that released it. As a result, the attempt by the taxpayer to deduct a business loss was disallowed because the expenditures did not meet the “business test”.

In Canada, whether the cost of acquiring a domain name is a business expense or constitutes the acquisition of capital property has not been definitively decided. Between the two extremes certain acquisition costs will constitute eligible capital property, which are subject to significantly reduced write-offs. Trademarks and good will are examples of eligible capital property. To the extent that a domain name does not constitute a trademark, it is arguable based on first principles that such acquisition costs are not eligible capital expenditures. Additionally, given that tax treatment may vary between jurisdictions, companies may want to take taxation into consideration when deciding where to acquire and locate particular domain names.

PRIVACY RIGHTS - THE NEW CANADIAN PRIVACY LEGISLATION

On April 4, 2000, the federal government of Canada passed Bill C-6, otherwise known as the Personal Information Protection and Electronic Documents Act. It is widely expected that Part I, dealing with personal privacy, will be proclaimed into law effective January 1, 2001, with the balance of the Act expected to come into force early in May of this year.

For a three-year period from the date the legislation comes into force, it will not apply to businesses under provincial jurisdiction, although the legislation purports to cover businesses engaged in the extra-provincial exportation of information. Provinces that enact similar legislation during the three-year period can expect to be exempted from the operation of the Act.

While billed as a necessary cornerstone to encourage use of the Internet by Canadians, the Act will also now place Canada firmly onside in compliance with the EC privacy directive of 1998 regulating the collection and export of personal data from the European Community.

Passage of the legislation furthers the federal government’s declared intention to establish Canada as a world leader in the use of electronic commerce through tax neutrality, cryptography, consumer protection, digital signatures, standards, secure electronic commerce, and privacy.

For the time being, privacy concerns have outweighed the convenience of government and business. The willingness of individuals to continue to sacrifice privacy for convenience remains a significant concern, however.

To the extent that the legislation is thought of as e-commerce enabling, the inclusion of Parts II and III dealing with electronic documents and amendments to the Canada Evidence Act can be rationalized. Part II facilitates the use of electronic alternatives to paper records and communications under federal laws. Regulations governing implementation of this part are required.

The Act effectively mandates a national standard for the protection of personal information. The foundation of the legislation is the Model Code for the Protection of Personal Information developed by the Canadian Standards Association . The 10 principles of the code have been enshrined in the legislation as a schedule to it.

Briefly, the Model Code mandates:

1. Organizational accountability for compliance;

2. The need to specify the purposes for which information is being collected, before collection;

3. The requirement for personal knowledge and consent by persons to the collection of information;

4. That the collection of information must be limited to that necessary for the purposes identified by the organization;

5. That the information can only be used, disclosed and retained as long as necessary for the stated purposes;

6. That the information must be accurate;

7. That safeguards appropriate to the sensitivity of the information be in place;

8. Open access to organization policies and practises relating to management of information;

9. Individual access to personal information; and

10. The right to challenge organizational compliance.

This legislation is not to be confused with various provincial statutes with titles such as the Freedom of Information and Protection of Privacy Act (British Columbia), the primary purpose of which is to mandate government disclosure of information it might otherwise keep secret. These statutes can have application to businesses contracting with government to the extent that the parties wish to keep their arrangements private. For example, the University of British Columbia has refused to provide details of an exclusive marketing arrangement with Coca-Cola. The case is now under appeal. Prudence dictates that contracts with government contemplate this legislation, in order to strengthen the claim that such arrangements should be kept confidential.

The possibility exists that substantial costs could be incurred in complying with the legislation. In light of the significant value associated with databases, compliance with the legislation can be argued to be a mandatory part of an organization’s business strategy in order to maintain the value of this asset. Organizations subject to the legislation would be wise to implement compliance procedures in anticipation of the January proclamation if they wish to be able to continue to collect and use the personal data that is at the heart of their business in a cost effective manner. Compliance items include:

1. Restrictions on the collection of personal information;

2. Restrictions on the use of personal information;

3. Restrictions on the disclosure of personal information.

The impact on small business (for implementation and administration) remains to be seen.

The Federal government is limited in its ability to pass privacy legislation to those matters coming within its legislative prerogative. These areas include telecommunications, banking, inter-provincial transportation, defence, implementation of treaty obligations, trade and commerce, immigration, criminal law, and intellectual property. There is some question about the constitutionality of the provisions mandating the application of the Act to areas of provincial jurisdiction if a province fails to enact similar legislation within three years of proclamation of the Act.

The Canadian Industrial Relations Board recently ruled that the ISP division of Island Tel (of the province of Prince Edward Island) was subject to federal regulation, effectively ensuring that ISPs will be subject to the legislation immediately upon proclamation into force of the Act.

While public support for the legislation was almost unanimous, the Canadian Security Intelligence Service (CSIS) objected to the legislation for reasons of law enforcement. CSIS felt that the legislation could have “an undue impact” on “day-to-day” operations of the agency. As a result of its concerns, amendments provide that private sector organizations can still disclose personal information without consent to government agencies for law enforcement and national security purposes. And in a similar vein, agencies are not obligated to disclose personal information to persons under investigation.

The Canadian medical establishment also presented disparate views to parliament, with some groups arguing that the standard of consent required in the legislation is too soft and other groups arguing that the need for consent will impede medical research and that the requirements of the legislation will greatly increase the costs of healthcare. The upshot is that the legislation will not apply to the healthcare industry for an additional one-year transitional period following its proclamation. Further exemptions are unlikely.

The Act relieves organizations from the obligation to disclose information in a select number of situations, such as where the disclosure would violate solicitor-client privilege, where to do so would reveal confidential commercial information, or where the disclosure of the information could endanger a person’s life. Additionally, there are safeguards in the Act for “whistleblowers” who complain about an organization’s failure to comply with the legislation.

For further reference, Industry Canada, a federal ministry, maintains a collection of information entitled The Privacy Pages.

CRIMINAL

In Canada, it is an offence to possess child pornography, in addition to the expected prohibitions preventing its production and distribution. The British Columbia Court of Appeal questioned the constitutionality of Canada’s criminal code provisions dealing with child pornography in R. v. Sharp decided in mid 1999. The Crown has appealed the case to the Supreme Court of Canada.

SPAM

The Court confirmed the right of Nexx Online to terminate the Internet access service it provided to the plaintiff as a result of the plaintiff having sent spam at the rate of 200,000 messages per day . The Court was willing to interpret a contractual obligation on the part of the plaintiff to follow generally accepted “netiquette” as a default of contract entitling the defendant to cancel service. In an interesting twist, the Court felt that the plaintiff could obtain other access services for its bulk e-mail service, and that if it could not it would provide irrefutable proof of the court’s conclusion that spam constituted an unacceptable breach of netiquette.

INTERLOCUTORY INJUNCTIONS

A recent decision of the Federal Court involving IMAX Corporation seeking to restrain Showmax, Inc. from infringing its trademark was decided in January, 2000 . IMAX sought to restrain Showmax from naming its large format motion picture theatre Showmax. In deciding the motion, the Court also considered the defendant’s link to the plaintiff’s web site. Using framing and linking, the defendant showed IMAX’s trademark juxtaposed with Showmax in a way that would lead people to the mistaken belief that the companies were related.

In a trademark case, the Federal Court confirmed, again, that an injunction is an extraordinary remedy that will not be granted simply because the complainant is concerned . The Court requires that the conduct is occurring or is likely to occur.

ANTI-TRUST/COMPETITION

In Canada, the Competition Bureau, a department of Industry Canada, is charged with policing anti-competitive behaviour. Discussion has been taking place since 1999 with respect to their approach to anti-competitive behaviour with respect to the exercise of intellectual property rights. A copy of the draft Intellectual Property Enforcement Guidelines is available on the Internet . A copy of the Competition Act is also linked to from this site.

The provisions of the Competition Act that set out when it may be necessary for the Bureau to intervene in a business arrangement, including an arrangement involving intellectual property, fall into two categories: those that cover criminal offences and those that cover reviewable (civil) matters. Many provisions state that the Competition Bureau must show that the conduct either substantially or unduly lessens or prevents competition before it intervenes.

Criminal offences include conspiracy (section 45), bid-rigging (section 47), price maintenance (section 61), price discrimination and predatory pricing (section 50), and some forms of misleading advertising and related deceptive marketing practices (sections 52 to 55).

The provisions on reviewable (civil) matters deal with conduct that is generally pro-competitive but that may, in certain economic circumstances, significantly constrain competition. Reviewable matters include abuse of dominant position (section 79), exclusive dealing, tied selling and market restriction (section 77), refusal to deal (section 75), mergers (section 92), and misleading advertising and related deceptive marketing practices (section 74). As a rule, the Competition Tribunal may order remedies under these provisions if the conduct is likely to substantially lessen or prevent competition .

Generally, the Bureau will not consider licensing agreements to be anti-competitive unless they reduce competition to a level below that which would have existed without the license.

CONFIDENTIAL INFORMATION

In February, 1999, the Supreme Court of Canada rendered its judgement in Cadbury Schweppes Inc. et al v. FBI Foods Ltd. et al. Among other things, the case confers a broad discretion to select a remedy that is just and equitable. The case also dealt with the fact that FBI’s use of the confidential information arose out of a manufacturing agreement, and there was no direct contractual link between the plaintiff and defendant FBI.

DEFAMATION

A defamation claim in Canada favours the plaintiff to a significant degree more than in the U.S.

The political arena continues to be fertile grounds for defamation actions. In 1999, Stockwell Day, currently running for the leadership of the Canadian Alliance Party (the official opposition federally, was sued by an Alberta criminal defence lawyer relating to alleged inappropriate remarks made about the plaintiff’s defence of an alleged child pornographer.

SECURITIES LAW

In a decision in February, 2000, the Alberta Securities Commission shut down the World Stock Exchange, a controversial pseudo stock market that had hoped to bypass local securities laws by operating on the Internet from Antigua. Among its many reasons, the ASC panel found it had jurisdiction over its activities because the WSE had links to Alberta. The exchange's principals, for example, had conversations with between 30 and 40 people in Alberta, several of whom lost substantial sums of money. A copy of the decision is available on-line.

CONSUMER PROTECTION

And lastly, in November, 1999, Industry Canada announced a non-binding set of guidelines relating to on-line shopping.

ENDNOTES

1.
(November 26, 1998) Fed Ct No T-1978-97; w.fja.gc.ca/en/cf/1999/orig/html/1999fca25128.o.en.html.
2.
www.fja.gc.ca/en/cf/1999/orig/html/1999fca24841.o.en.html.
3.
Www.fja.gc.ca/en/cf/1999/orig/html/1999fca25071.o.en.html.
4.
unreported, (March 24, 1999) Fed Ct No T-1109-96.
5.
unreported, (December 10, 1998) Fed Ct No T-638-97.
6.
(1999) 87 C.P.R. (3rd) 43.
7.
Fed Ct. No T-182-94, December 2, 1999.
8.
unreported, (November 16, 1999) Fed Ct No T-2432-97.
9.
(February 26, 1999) Doc 97-CU-120413, CL-162 (Ont. Gen. Div. [Commercial List]).
10.
(April 28, 1999) Doc. 70835/96 (Ont. S.C.J.).
11.
(December 30, 1998), Doc. T-713-97 (Fed. T.D.).
12.
Petro-Canada v. 2946661 Canada Inc. [1999] 1 F.C. 294.
13.
unreported, (November 19, 1998) Fed Ct No T-1674-97.
14.
www.cira.ca.
15.
http://www.cira.ca/ciraupdate.html.
16.
http://www.cira.ca/adr.htm.
17.
www.socan.com.
18.
(July 28, 1999), Doc. 92-CQ-24586 (Ont. S.C.J.).
19.
Robb v. Orca Bay Sports and Entertainment (January 11, 1999) Doc. Vancouver C974792 B.C. S.C.).
20.
Robertson V. Thomson Corp. (1999) 85 C.P.R. (3rd) 1.
21.
Law Post v. New Brunswick (April 20, 1999) Doc. F/C/283/98 (N.B.Q.B.).
22.
[1999] 2 F.C. 287 (F.T.D.).
23.
(February 16, 1999), Doc.CA C27489 (Ont. C.A.), affirming (1995 63 C.P.R. (3rd) 380.
24.
http://aix1.uottawa.ca/~geist/Microsoft.htm.
25.
(January 15, 1998) Doc. 97-CV-4248 (Ont. Gen Div.).
26.
(February 12, 1999), Doc. CA C28329 (Ont. C.A.) reversing (1997) 48 C.B.R. (3rd) 1.
27.
Braintech Inc. v. Kostiuk (1999) 171 D.L.R. (4th ) 46 (B.C. C.A.).
28.
www.kentlaw.edu/cyberlaw.
29.
(1998) 144 F.T.R. 230, 81 C.P.R. (3rd) 349 (Fed T.D.).
30.
Angoss International Ltd. v. R. (February 4, 1999), Doc. 97-819(IT)G (T.C.C.).
31.
[1998 2 C.T.C. 2949 (T.C.C.).
32.
http://www.csa.org.
33.
http://e-com.ic.gc.ca/English/privacy/632d.html.
34.
1267623 Ontario Inc. v. Nexx Online Inc. (June 14, 1999) Doc. Toronto C 20546/99 (Ont. S.C.J.).
35.
www.fja.gc.ca/en/cf/2000/orig/html/2000fca/25888.o.en.html.
36.
unreported, Kun Should Rest Inc. v. Joseph Kun Violin and
Bow Maker Inc. (April 8, 1999) Fed Ct No T-118-97.
37.
strategis.ic.gc.ca/SSG/ct01538e.htm.
38.
Draft Intellectual Property Guidelines, Part 2.2, s. 13/15.
39.
www.albertasecurities.com.
40.
http://strategis.ic.gc.ca/SSG/ca01185e.htm.