Federal Court Judgment Overturns Cabinet Decision in Globalive Case

(Credit: Couvrette)

Justice Roger Hughes (pictured above) of the Federal Court has issued a notable and inevitably controversial judgment reversing Cabinet's reversal of the CRTC Globalive decision.

Although Cabinet has the power to overrule the CRTC, Cabinet must follow the intent of the statute that confers upon it this power.  He says:

[117] In the first of the above “Whereas” clauses, the Governor in Council misdirected itself in
law  by interpreting the Canadian ownership and control requirements of the Telecommunications
Act ,to use its words, “in a way that ensures access to foreign capital, technology and experience is
encouraged”.  While the Governor in Council is correct in saying in the same clause that “the Act
does not impose limits on foreign investment” it must be kept in mind that the Act does not refer
anywhere to “foreign investment” or to “foreign capital, technology and experience”. What the Act
does say is that telecommunications has an essential role in the maintenance of Canada’s identity
and sovereignty and provides a policy objective which requires Canadian ownership and control to
be promoted. There is no policy objective in the Act that encourages foreign investment. The Act
provides tests as to Canadian ownership and control including in subsection 16(3)(c) that a
corporation not be otherwise controlled by a non-Canadian. The intent of the Act is clear that a
situation such as this is to be determined in a manner so as to ensure that there is Canadian control. 
Where there is a concern that foreign investment and other factors may put Canadian control at risk
then it is the promotion of Canadian control that is to be the essential criterion upon which the
matter is to be determined. It is for Parliament not the Governor in Council to rewrite the Act.

(emphasis added)

There will be much analysis of this decision, which I found on the very worthy http://www.thewirereport.ca/ website. It is not yet on the Federal Court website, though it will no doubt appear very soon.

This is the latest of many decisions since Dunsmuir to probe the "sempeternal" question of standard of review, although review of cabinet decisions is quite rare. One had hoped that the issue would have been put to rest by the Supreme Court of Canada's decisions in Housen, Dunsmuir and Khosa. There was also a pronouncement on standard of review in Calgene, delivered by the SCC as recently as on the second day that this case was being heard. . However, the Federal Court and, most notably, the Federal Court of Appeal have seemed lately to be, with respect,  rather unpredictable and not notably consistent with respect to the application of the standard of review jurisprudence. Hopefully, if the SCC takes CMEC's K-12  fair dealing case along with the SOCAN "previews" case, which it has already agreed to take, we will get further needed guidance, since standard of review is likely to be an important issue in these cases.

It will be interesting to see what effect, if any, Justice Hughes' decision - assuming that it stands - could have on the recent very controversial UBB ruling from the CRTC, which the Government has indicated it will not allow to stand.

There was a voluminous record in this proceeding going back more than one year. There was a two day hearing involving several very high powered parties on January 19 and 20, 2011. Justice Hughes' 57 page decision followed 15 days later on February 4, 2011.

HK

PS - here's a direct link to the Federal Court posting of the decision.

Justice Hughes on Canada's Copyright Act

Here is a recent breathtaking ruling by Hughes, J. of the Federal Court of Canada setting aside a "rolling Anton Piller" order that allowed for civil search and seizure before judgment against several "small shopkeepers." It is an excellent review of the dangers of this ultra-powerful enforcement weapon when used improperly and on the basis of "careless, inadequate or misleading" evidence. This ruling must be read with great care by any IP enforcement counsel contemplating use of an Anton Piller order.

And here's a statement from that ruling that should be brought to the attention of those who would impugn the adequacy of Canadian copyright law and are calling for additional and unnecessary enforcement powers:

[60] The Copyright Act supra is among the most generous of any intellectual property statute in Canada or elsewhere in providing for rights and remedies. Copyright subsists without the necessity for registration and is presumed in the absence of evidence to the contrary. Registration is cheap and easy and provides presumptive evidence as to copyright subsistence and ownership. Proceedings can be quickly brought as an application rather than an action. Damages can either be proved or an election to take statutory damages made. An injunction can extend to works not specifically put in issue. Allegedly infringing works can be taken into interim and final custody. An Anton Piller Order must be considered as an exceptional remedy to be used with caution and respect. It should not be considered as routine where so many other remedies and procedures are available.
(emphasis added)

For those in policy circles abroad who may not know him or have seen him at the Fordham IP conference, Justice Hughes was a preeminent Canadian barrister for decades before his appointment to the Federal Court. His books are - or should be - in every IP firm library in Canada. He speaks not only with the authority of a Federal Court judge but as a judge with vast and successful experience in IP law. His views require attention in any fora where IP policy is in issue. ACTA, CETA (Canada/EU) , Special 301 and domestic copyright revision immediately come to mind.

HK

PS - this 30 page ruling dated April 12, 2010 was issued five days after the hearing.

Tony Clement - New Minister of Industry

Congratulations to Tony Clement on his appointment as the new Minister of Industry.

Minister Clement previously was the Minister of Health. As such, he would have been very familiar with the perennially intractable debates over the Patented Medicines (Notice of Compliance) (“PMNOC”) Regulations, and the extent to which big money and big lobbying have attempted to drive national and international IP policy. He would also have been involved in debates on counterfeiting, and other matters. All of this experience makes hin a logical choice to be Minister of Industry.

There are aspects of the PMNOC wars and the copyright wars that have much in common. For those interested in the history and state of play of the PMNOC regs, this very recent important judgment in Apotex v. Merck from Mr. Justice Roger Hughes of the Federal Court explains it all in a very readable and balanced way, and indeed speaks at great length about the concept of “balance” in the context of the Patent Act and PMNOC regulations.

The Minister of Industry has enormous responsibilities for both the patent and copyright files, along with many other duties that are even more visible. We wish hm well in this very important portfolio at this very important time.

HK