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Industrial and Intellectual Property

Trademarks

Plaintiff’s trademarks had little inherent distinctiveness and were afforded narrow ambit of protection

Parties were commercial program providers. Plaintiff approached defendant to propose vendor relationship which defendant declined. Email exchanges between parties revealed to defendant WORKPERKS and ADPERKS marks, plaintiff’s system for managing discount programs, and plaintiff’s customer employee groups and association/member-based groups and corresponding number of end-users. Plaintiff claimed information was confidential, which defendant disputed. Plaintiff claimed defendant infringed its rights in family of registered trademarks endings in “PERKS” (VI trademarks) by using registered trademark “PERKOPOLIS.” Plaintiff asserted defendants made false and misleading statements discrediting plaintiff’s business, committed tort of passing off, and depreciated their goodwill. Action dismissed. Claim that defendants disseminated false and misleading statements regarding plaintiff’s business and services tending to discredit plaintiff was dismissed. Evidence did not show statements made by corporate defendant with respect to deficiencies in plaintiff’s infrastructure to provide customer support or concerning insufficient privacy and security of personal information. There was no evidence of any connection of misleading or false statements made by defendants to potential or actual customers of plaintiff in relation to parties’ trademarks in issue. Claim in relation to depreciation of goodwill was dismissed. Plaintiff acknowledged that only alleged use by defendants of any of plaintiff’s trademarks was use of “Member Perks” on web site, which use was not use as trademark for purpose of distinguishing defendant’s wares or services from others, and could not constitute basis for valid claim with respect to depreciation of goodwill. Speculative nature of plaintiff’s evidence of damages was insufficient to support valid of passing off. There was no likelihood of deception through misrepresentation. There was little resemblance in either appearance or sound or in idea suggested by marks. Each of plaintiff’s trademarks was combination of particular class of end users and word perks. Defendant’s use of “perk” suggested type of benefit program but had little obvious suggestion as to whom or for what perks were offered and did not suggest any of ideas associated with plaintiff’s trademarks. Plaintiff’s trademarks had little inherent distinctiveness and were afforded narrow ambit of protection. Evidence of confusion was insufficient to establish that casual customer somewhat in hurry would confuse marks.
Venngo Inc. v. Concierge Connection Inc. (Dec. 3, 2015, F.C., Michael D. Manson J., T-467-11) 262 A.C.W.S. (3d) 465.


Immigration

Visitors

Question was certified with respect to application for extension of temporary residence permit

Foreign nationals were French citizens in Canada on temporary resident permits which expired July 15, 2014. On June 16, 2014 foreign nationals applied for extension of time however application forms and documents were returned to them because they had failed to make sufficient payment and to provide other required documents. Citizenship and Immigration Canada’s covering letter to foreign nationals indicated that their request could not be dealt with unless they returned copy of letter, together with new complete application in proper form accompanied by correct fee and other required documents. On August 25, 2014, foreign nationals purported to comply, however their application forms were again sent back with same form covering letter indicating that certain information was still missing. On April 21, 2015 foreign nationals resubmitted everything and had yet to receive reply. On July 4, 2015, minister’s delegate signed exclusion order pursuant to s. 44(2) of Immigration and Refugee Protection Act (Can.) on grounds that foreign nationals had violated s. 29(2) of Act by failing to leave Canada at expiry of their temporary resident permits. Foreign nationals applied for judicial review, contending that exclusion order was invalid because they had applied for extension of their permits before they had expired, so that they maintained Canadian status under Regulations until their applications were refused on merits. Application dismissed. Decision of minister’s delegate to issue exclusion order was both reasonable and correct. Application within meaning of s. 183 of Immigration and Refugee Protection Regulations (Can.) must be such that decision maker is able to grant extension, or to reject it, on merits. Officer could not have made positive decision on application form submitted before temporary resident permits expired because applications were incomplete. Therefore, foreign nationals were required to depart Canada under s. 183(1) of Regulations and s. 29 of Act. Question certified: When temporary resident has applied for extension of period authorized for his or her stay, but application is returned to applicant, due to incompleteness, in accordance with s. 12 of Regulations, does applicant benefit from implied status until he or she actually submits complete application and that application is either refused or allowed?.
Stanabady v. Canada (Minister of Citizenship and Immigration) (Dec. 11, 2015, F.C., Sean Harrington J., IMM-2838-15, IMM-2840-15) 262 A.C.W.S. (3d) 194.


Aboriginal Peoples

Status

Record too sparse to conclude that First Nation fell within definition of ‘Band’ in Indian Act (Can.)

Delegate of Minister of Aboriginal Affairs and Northern Development Canada refused applicant First Nation’s request for $5,000 to be paid to it from trust money held by Government of Canada. Funds were sought to assist First Nation in paying for research to be used in negotiations with Department of Fisheries and Oceans. Refusal was based on fact that First Nation was not recognized Band pursuant to Indian Act (Can.). First Nation applied for judicial review of minister’s delegate’s decision. Application dismissed. In order to make declaration that applicant sought, namely that Minister of Indian Affairs and Northern Development held funds for its benefit, court would first have to find that First Nation was entitled to claim money on basis that land in New Brunswick that was set aside as reserve land in 1881 was set aside for Passamaquoddy people. Court would then have to find that members of First Nation were successors to Passamaquoddy people for whom reserve was created. Effect of such findings would be that First Nation would then come within definition of Band in s. 2 of Act, and would be entitled to social programs and other benefits. However, record before court was far too sparse to make findings First Nation sought. Delegate’s decision was not incorrect or unreasonable, based on limited record before him when decision was made. Delegate did not apply wrong standard of proof in rejecting First Nation’s request for fund.
Schoodic Band v. Canada (Attorney General) (Dec. 21, 2015, F.C., Anne L. Mactavish J., T-1183-14) 262 A.C.W.S. (3d) 4.


Injunctions

INTERLOCUTORY RELIEF

Expanding scope of injunction order would disrupt balance of convenience analysis

Action challenged constitutionality of Marihuana for Medical Purposes Regulations. Plaintiffs were granted interlocutory injunction that had very specific terms designed to balance number of competing interests. Plaintiffs wanted to change dates set out in injunction order and to change class of persons covered by order and extend order to wider group of former Marihuana Medical Access Regulations holders. Plaintiffs brought motion to vary injunction. Motion dismissed. Matters raised on motion were not truly new. Motion was premature. To accept plaintiffs’ characterization of evidence, its weight and significance would require court to make critical determinations in advance of decision on underlying Canadian Charter of Rights and Freedoms challenge. It was not appropriate for court to engage in piecemeal and premature consideration of aspects of its final judgment. Court should not alter carefully crafted interlocutory injunction order by expanding its terms. Expanding scope of injunction order would disrupt balance of convenience analysis. Relief sought extended past decision date of Charter challenge. Interlocutory orders were designed to expire when final decision in litigation was made.
Allard v. Canada (Jul. 15, 2015, F.C., Michael L. Phelan J., File No. T-2030-13) 261 A.C.W.S. (3d) 708.


Injunctions

INTERLOCUTORY RELIEF

Expanding scope of injunction order would disrupt balance of convenience analysis

Action challenged constitutionality of Marihuana for Medical Purposes Regulations. Plaintiffs were granted interlocutory injunction that had very specific terms designed to balance number of competing interests. Plaintiffs wanted to change dates set out in injunction order and to change class of persons covered by order and extend order to wider group of former Marihuana Medical Access Regulations holders. Plaintiffs brought motion to vary injunction. Motion dismissed. Matters raised on motion were not truly new. Motion was premature. To accept plaintiffs’ characterization of evidence, its weight and significance would require court to make critical determinations in advance of decision on underlying Canadian Charter of Rights and Freedoms challenge. It was not appropriate for court to engage in piecemeal and premature consideration of aspects of its final judgment. Court should not alter carefully crafted interlocutory injunction order by expanding its terms. Expanding scope of injunction order would disrupt balance of convenience analysis. Relief sought extended past decision date of Charter challenge. Interlocutory orders were designed to expire when final decision in litigation was made.
Allard v. Canada (Jul. 15, 2015, F.C., Michael L. Phelan J., File No. T-2030-13) 261 A.C.W.S. (3d) 708.


Administrative Law

JUDICIAL REVIEW

Applicants had no right to participate in medical marijuana licensing process

Respondent company applied for license to produce medical marijuana at certain property owned by respondent numbered company. Respondent federal health authority granted preliminary approval, subject to inspection to ensure production facility met all applicable regulatory standards. Meanwhile, municipality in which property located passed bylaw prohibiting production of medical marijuana on all properties within its jurisdiction. Respondent, therefore, applied to municipality to rezone property to permit construction and operation of licensed medical marijuana production facility on property. Municipality gave notice of rezoning application to owners and/or occupiers of adjacent properties, including applicants. Applicants wrote to municipality voicing strong opposition. Municipality’s planning department prepared report acknowledging concerns but referencing existing regulatory requirements meant to address such health, safety and security concerns, and recommended application receive first and second reading and be referred to public hearing. Following public hearing, at which applicants given opportunity to voice concerns, municipality decided to proceed with rezoning subject to restrictive covenants meant to ensure compliance with regulatory requirements and environmental remediation of site. Applicants wrote to federal health authority to express concerns and request standing to be heard in licensing application. After receiving no response to repeated requests, applicants applied for declaration they were, as matter of natural justice and procedural fairness, entitled to be heard and for order of mandamus compelling authority to allow them to participate in licensing process. Application dismissed. Applicants had no statutory or common law right to participate in medical marijuana licensing process. While Marihuana for Medical Purposes Regulations required notice of applications to local authorities, they did not require notice to owners or occupiers of adjacent properties. While regulations required authority to refuse any license that would create risk to public health, safety or security, they contemplated local authorities, not third parties such as applicants, would raise such concerns. Applicants concerns were, essentially, related to land use or planning issues, and what municipality had or had not been entitled to do in rezoning process. Their only remedy was to participate in that, not marijuana production licensing process.
P & S Holdings Ltd. v. Canada (Dec. 1, 2015, F.C., Anne L. Mactavish J., File No. T-2184-14) 261 A.C.W.S. (3d) 252.


Administrative Law

FREEDOM OF INFORMATION

Interests and administration of justice better served if applicant’s personal health information kept confidential

In 1998, applicant sought judicial review of administrative decision in respect of his entitlement to certain employment related disability benefits. In 2000, judicial review was dismissed. In 2002, applicant noticed that reasons for decision were posted on Federal Court website. Reasons included personal health information about applicant that he wanted to keep private. His request that Internet version of decision be amended to exclude his personal health information was granted. In 2004, applicant was appointed Ombudsman at the Internet Corporation for Assigned Names and Numbers (ICANN), which administered domain names for the Internet. In 2004, K lodged complaint with ICANN respecting Universal Domain Name Resolution Policy adjudication. Applicant determined that he did not have jurisdiction to hear complaint as K was not person affected by decision. In February 2011, K found information on the Internet concerning applicant’s 1998 judicial review application. He posted link to Federal Court docket and reasons in two separate tweets on his Twitter account. K also posted tweet which contained personal health information about applicant. After protest by applicant, tweet was taken down. At that time applicant realized that, despite direction from court, his personal health information had not been removed from Internet versions of decision. In May 2012, applicant filed a motion requesting confidentiality order over underlying file in matter, which was granted. K brought motion to set aside confidentiality order. Motion granted in part. Confidentiality order was unnecessarily broad. In order to ensure that court proceedings remained presumptively open and accessible to public and media, reasons for decision shall be made public and material related applicant’s file shall no longer be kept confidential. However, interests and administration of justice were better served if applicant’s personal health information was kept confidential. Allowing applicant’s health information to be publicly available would cause objectively discernible harm to his privacy and professional reputational interests. Redaction of reference to applicant’s health information did not alter decision in any way.
Fowlie v. R. (Apr. 24, 2015, F.C., Donald J. Rennie J., File No. T-1971-98) 260 A.C.W.S. (3d)


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