By Julius Melnitzer | January 15, 2024
What follows is Law360 Canada’s annual list of the Top 10 business decisions in Canada for the just-ended year. This is a two-part series, which begins below with numbers 6-10, in ascending order.
In this case, the first time in 10 years that the Federal Court of Appeal has directly addressed the patentability of computer implemented inventions, it took the opportunity to throw the jurisprudence into chaos again.
“Patentability of computer inventions is a big issue in Canada as it relates to the role of technology in the economy,” said Alan Macek, an intellectual property partner at DLA Piper (Canada) LLP in Toronto. “So, the industry had been watching this case closely, hoping for certainty, but in some ways the decision set us back to where we were before.”
That’s because the FCA rejected in its entirety the three-part framework imposed on the Commissioner of Patents by the Federal Court – despite the fact that the Intellectual Property Institute of Canada had proposed it as a way to provide some clarity regarding the role of novelty and obviousness as factors to consider in determining whether claims had practical applications.
“Because the FCA didn’t provide its own framework, there’s a lot for the patent office and its examiners to work out,” Macek said.
APPEARANCES: Justice Canada; Markwell Clarizio LLP; Fasken Martineau Dumoulin LLP; Brian Gray Law
This decision, which concluded that a commercial tenant could not rely on the impact of public health regulations as a reason to stop paying rent during the pandemic, is now the definitive case on what qualifies as a “legal disturbance” to a commercial lease under Quebec’s Civil Code.
“The Quebec Court of Appeal reasoned that public health measures were not disturbances because they did not affect the physical premises per se,” said Christopher Richter, an advocacy partner in Torys LLP’s Montreal office. “The regulations were not about the use of the building, but about the operations of the business.”
APPEARANCES: Philippe Colivas; Clėment Forget; Pinto Legal
In ruling that a “financial liability” exclusion prevented a fitness centre from relying on a force majeure clause in a commercial lease to stop paying rent when COVID restrictions forced its closure, the Ontario Court of Appeal provided seminal guidance regarding the interpretation of force majeure clauses.
The court held that such a clause was triggered only if it met two conditions: a party had to be “delayed or hindered in or prevented from the performance” of an act under the lease; and the failure to perform must result from a force majeure event as defined in the contract.
Here, the closure of the premises had hindered the fitness centre’s ability to pay rent, but that failure did not flow from the force majeure clause because it specifically excluded “financial inability” from the definition.
The court’s analysis, however, goes beyond commercial leases.
“The decision is really one of contractual interpretation of a force majeure provision, and will be of wide application in commercial contracts generally,” said Sahil Shoor, a litigation and dispute resolution partner in Gowling WLG’s Waterloo Region office.
APPEARANCES: Polley Faith LLP; Teplitsky LLP
The Ontario Court of Appeal’s ruling that actions to set aside fraudulent conveyances under the Fraudulent Conveyances Act are subject to the two-year limitation period in the Limitations Act, 2002 effectively overturned its two-year-old decision in Anisman v. Drabinsky, 2021 ONCA 120, which held that 10 years was the applicable prescription.
“There has been a lot of confusion in this area stemming back for some time, as the caselaw had gone off in different directions, which made it very hard to gauge risk,” said Patrick Bakos, a litigation partner at Friedmans LLP in Toronto, who represented the successful defendants. “Justice (Kathryn) Feldman’s reasons were much needed.”
APPEARANCES: Friedman LLP; Rubenstein, Siegel
In the quickly evolving landscape of jurisprudence interpreting anti-SLAPP legislation, this Supreme Court of Canada decision makes several important clarifications:
- Anti-Slapp motions can succeed even if the impugned claim has merit and the defendant has no defence; indeed, courts must dismiss the claim if the public interest in protecting the defendant’s expression outweighs the harm to the plaintiff;
- The relevant “chilling effect” on the right to sue refers to the impact that permitting a lawsuit to continue would have on defendants’ freedom of expression and not to the effect on the plaintiff’s speech; and
- Expression that dovetails with the core values underlying the Charter’s right of freedom of expression attracts special protection on anti-SLAPP motions. One example is “expression motivated by a desire to promote tolerance and respect for marginalized groups,” which engages these core values.
The SCC, however, gave no further guidance on weighting the relevant factors enunciated in the jurisprudence.
“The law seems to be crystallizing around uncertainty as a principle,” said Brandon Barnes Trickett, a litigation and dispute resolution partner in Dentons Canada LLP’s Toronto office.
Stay tuned. Part II of the Top 10 business decisions of 2023, featuring cases ranked 1-5, will follow shortly.
APPEARANCES: Robyn Trask; Paul E. Jaffe; Ministry of Attorney General of BC; Blake, Cassels & Graydon LLP; Caroline Carrasco; St, Lawrence Barristers PC; Dustin Klaut; Adrienne Smith Law; Jitesh Mistry; McCarthy Tétrault LLP; Stockwoods LLP
Julius Melnitzer is a Toronto-based legal affairs writer, ghostwriter, writing coach and media trainer. Readers can reach him at [email protected] or https://legalwriter.net/contact.