Canadian Lawyer

36 F e b r u A r y 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m INTELLECTUAL PROPERTY S omewhere in the Canadian Intellectual Property Office sits a civil servant waiting for the phone to ring. The Integrated Circuit Topography Act came into force in 1993, and in more than 21 years per- haps 80 registrations have been filed. The act offers 10 years of protection for 3D integrated circuits, a technol- ogy that appears to have been super- seded, according to Bruce Green of Vancouver's Oyen Wiggs Green & Mutala. Otherwise inventors would be filing up a storm. "It's just not filling a need," says Green, "it's just a lonely little act." It's time to say goodbye, Integrated Circuit Topography Act. On the other hand, pharmaceuticals continue to be a very busy area of IP law. Ronald Dimock, of Dimock Stratton LLP, points to the Patented Medicines (Notice Of Compliance) Regulations. Created in 1993, the act concerns the manufacture of generic drugs. But the original innovator almost always con- tests the licensing request, calling it a patent infringement. The law holds that such cases are heard by the Federal Court of Canada, but the hearing does not have the stand- ing of a formal trial. Despite this, the parties must hire lawyers, experts, do examinations, prepare reports, and more, all to be presented to the judge (who never actually gets to see a wit- ness in person). Yet the issues are ter- ribly complex, says Dimock, and often presented to a scientific layperson. And after all that, the decision can be appealed (and almost always is), where the process is repeated as a "real" court case. "It's been a boon to patent litiga- tors," says Dimock. There's more. A PMNOC case must conclude within two years of being filed. So such hearings leapfrog over others, and can contribute to backlogs. Proving that lawyers care more about creating a better system than ever-high- er billables, Dimock says it would be better to sidestep PMNOC hearings entirely, and go directly to trial. CRIMINAL LAW C onsider this juxtaposition: In November 2012, voters in the U.S. states of Washington and Colorado legalized the possession of small amounts of marijuana. That same month, the government of Stephen Harper brought in the tough-on-crime Safe Streets and Communities Act that imposes a mandatory six-month mini- mum jail sentence for anyone growing as few as six pot plants and who shares the buds with pals hanging out in the living room — that could be considered trafficking. Alan Young, a professor at Osgoode Hall Law School, sees s. 7 b(i) of the Controlled Drugs and Substances Act as criminalizing "otherwise law- abiding, productive citizens." Young will oversee a group of law students in 2015 who hope to challenge the mandatory minimum in court. James Lockyer, of Lockyer Campbell Posner, helped found the Association in Defence of the Wrongly Convicted. When considering an appeal, the courts, he complains, only consider errors in process, but do not engage in a smell test of the case itself. In the U.K., the concept of "lurking doubt" allows a higher court to quash a conviction "even though nothing procedurally is wrong," says Lockyer. "Courts of appeal should be prepared to conclude that there is a lurking doubt that the conviction is sound." Such a change would involve a reinterpretation of s. 686 of the Criminal Code, says Lockyer — and to do so, the Supreme Court of Canada would have to overturn itself in a case that dates back to 2000, R. v Biniaris. SECURITIES LAW E ven when you win, you lose. Disciplinary hearings under the Ontario Securities Act can be long and complicated. Lenczner Slaght secu- rities litigator Linda Fuerst points to an insider trading case in 2014 that took 43 days, over several months. The costs on both sides would have been rather high. Luckily, a tribunal can order some of the commission's costs be reimbursed by the respondent — for expert witness- es, for example. Unluckily, a respon- dent who is exonerated cannot have the favour returned. The respondent must bear all the expenses of a successful defence. "It's a one-way street," Fuerst says. Such costs are "a threat" to a respon- dent, who may well feel coerced into settling. She points to other administra- tive tribunals, such as the Law Society of Upper Canada or the Ontario College of Physicians and Surgeons that can order costs to successful respondents. HUMAN RIGHTS LAW M any people want to work beyond age 65, and the Ontario Human Rights Code has long abolished the mandatory retirement age. But what a way to make a living: The provincial Employment Standards Act still allows for age-based discrimination, says Kate Hughes, of Toronto's Cavalluzzo Shilton McIntyre Cornish LLP. "Once you hit 65 you're cut off from benefits plans," she explains. No pension, no contract with group insurers, nothing. The clash of the acts is being challenged in court, and Hughes hopes to see the Employment Standards Act modified. Sometimes politicians do keep their promises. On Jan. 1, the Liberal gov- ernment of New Brunswick eliminated

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