Publications

On October 3, 2014, the Supreme Court of Canada, by a majority decision of 5 to 4,1 confirmed that a disposition ordering the treatment of an accused who is found unfit to stand trial requires the prior consent of the designated hospital to all the terms of the disposition order, inclusive of the date on which the treatment is to begin. In this case, the Ontario provincial court had declared the accused unfit to stand trial and was permitted, in accordance with the powers granted under the Criminal Code,2 to render an order for involuntary treatment for a period not exceeding 60 days (section 672.58). Under the applicable provisions, a court may also include in the disposition any conditions of treatment that it considers appropriate. However, before a court can render the disposition order, the designated hospital must provide its consent (section 672.62 (1)(a)). During the hearing, the court heard evidence that the accused could be admitted to the designated hospital but only after a period of six (6) days, since no bed would be available before that time. The hearing judge was mindful of the fact that the accused was psychotic, and she wished to avoid sending him to a detention facility in the intervening time. The court therefore ordered that he be brought “forthwith” for treatment at the Centre for Addiction and Mental Health or “a designate (preferably Oak Ridge).” Following the hearing, the accused was delivered to the “designate” facility and left in the corridor by court services. Both hospitals appealed the decision to the Ontario Court of Appeal, which allowed the appeal. The matter before the Supreme Court turned on the scope of the consent required by the designated hospital under the Criminal Code: is consent fulfilled once the hospital has agreed to treat the patient, or must the hospital also give its consent to the timing of the treatment order? The Supreme Court held that the relevant provisions of the Criminal Code must be interpreted as requiring the hospital’s consent to all components of the disposition ordering treatment, including any conditions of treatment that the court might consider appropriate to order. Absent such consent, the disposition order cannot be issued. A hospital may therefore withhold its consent where it lacks the personnel or facilities to safely treat the accused at the time in question. However, the Supreme Court imparts a certain nuance in indicating that the consent requirement can be limited by the courts in exceptional cases where the accused can show that the hospital’s refusal to provide immediate treatment might compromise the likelihood that he would become fit to stand trial within the 60-day window provided in the Criminal Code, thereby infringing on his Charter right to life, liberty, and security of the person. In such exceptional cases, the courts could decide that an order for immediate treatment is an appropriate and just remedy for the breach. _________________________________________ 1 R. v. Conception, 2014 SCC 60. 2 RSC 1985, c C 46.

In an unanimous decision dated September 4, 20141 , the Court of Appeal confirmed that the 45-day time limit under the Act Respecting Health Services and Social Services2 (ARHSSS) to allow the medical examiner and the local service quality and complaints commissioner to process a user complaint is not mandatory but rather serves to indicate that the Legislator intends the complaint to be diligently processed. This judgment is further to a judgment of the Superior Court issued in April 2013, in which the Court had come to the same conclusion3. The facts are simple : a physician who was the subject of a complaint maintained that at the expiry of a 45-day period, the medical examiner who had not yet processed the complaint and had not issued conclusions loses jurisdiction. For all intents and purposes, this complaint then becomes null and void, unless the complainant exercises his right to submit it to a review committee. In the present case, the medical examiner had decided that the complaint had to be investigated for disciplinary purposes and had sent the file to the appropriate authorities 22 days after the time limit had expired. It must be noted that the ARHSSS contains no other provision which provides for a time limit within which the various competent disciplinary bodies would be required to decide on imposing sanctions to a physician. Moreover, the ARHSSS does not indicate a time period within which a complaint may be made. If the position of the physician had been successful, the result would have been that during a process to which no particular time limit applies, exceeding the initial 45-day time limit would constitute such a determining event that the complaint would no longer be allowed to be processed. As the Superior Court did, the Court of Appeal acknowledged that the main purpose of the regime for processing user complaints is [TRANSLATION] “the simple and efficient exercise of their rights by the users”. Interpreting the 45-day time limit for processing a complaint in the manner suggested by the physician would deprive the complainant – who did nothing wrong – of his right to have his complaint processed. This would defeat the objective sought by the Legislator, who used no wording which would allow one to conclude that he intended to make this time limit mandatory. In fact, the Court of Appeal was of the view that the time limit has rather been set to indicate that a person subject to it must act diligently, but also was mainly intended to trigger the right of the complainant to accelerate the processing of his complaint. Indeed, at the expiry of the time limit, the complainant can seize the review committee, which – to use the wording of the Court – acts as a “supervisory committee”. The scope of the judgment of the Court of Appeal well exceeds that of the case under review since all the user complaints, and not only those in respect of physicians, dentists or pharmacists, should be processed within the provided time limits. The Court’s decision does reflect the reality observed in many environments whereby many factors can explain why the medical examiner or the complaints commissioner could not provide the conclusions sought within the 45-day time limit. These factors may be attributable to the complainant, the person against whom the complaint is made, or events of any nature. The Court noted that in this respect, the medical examiner has no actual enforcement authority and that despite the fact that he may want to proceed diligently, the behaviour of third parties may prevent him from doing so. This being said, one must keep in mind that the 45-day time limit, despite being only indicative in nature, remains the expression of the Legislator’s intent that users’ complaints be processed quickly. The judgment of the Court of Appeal recognizes that the medical examiner retains jurisdiction to deal with a complaint despite the expiry of this time limit, but it is well specified that he is required to act as diligently as possible. _________________________________________ 1 Liu v. Comité de discipline du Centre de santé et de services sociaux Haut-Richelieu-Rouville, 500-09-023569-130, September 4, 2014. 2 CQLR, c. S-4.2. 3 Liu v. Comité de discipline du Centre de santé et de services sociaux Haut-Richelieu-Rouville, 2013 QCCS 1856.

The Commission des relations du travail, both in its initial decision and on review, dismissed the complaints challenging the dismissal of an employee despite the absence of prior disciplinary measures. The complainant, who was hired in April 2011, held a position as an administration technician for the Human Resources Department of a CHSLD. In 2004, the complainant sought a position as staff management officer. This position was not offered to her the first time it became vacant due to the fact that she did not possess the necessary qualifications. After obtaining her Master’s Degree in 2007, the complainant resumed her attempts to secure the position she sought. However, since the vacancy had already filled, her reclassification request was once again denied.This refusal resulted in the complainant taking a series of actions and behaving in a way that created an unhealthy work environment in the Human Resources Department. The complainant said that she felt that she was being unnecessarily monitored by her superior while the latter took the position that she had only taken action in response to complaints made by the complainant’s colleagues that she was engaging in improper behaviour. The investigation culminated in the employee being dismissed. The complainant went on to file a complaint under section 124 of the Act respecting Labour Standards (hereinafter the “ARLS”).In the meantime however, the complainant had begun to record conversations she was having with her superiors. The employer was only made aware of these recordings at the hearing before the Commission des relations du travail (hereinafter, the “CRT”). The complainant had also filed a complaint under the ARLS against one of her colleagues for psychological harassment. However, this complaint was withdrawn before making it to a hearing.The CRT dismissed the complaint contesting the termination, particularly for the following reasons: The clandestine recordings made by the complainant without a valid reason broke the trust between her and her employer and constituted a serious breach of her duty of loyalty. The psychological harassment complaint was unfounded and by falsely accusing her managers of such behaviour, the complainant had also committed a serious breach of her duty of loyalty.Dissatisfied with this decision, the complainant filed for review with the administrative review division of the CRT.THE DECISION BY THE CRT ON ADMINISTRATIVE REVIEWOn administrative review, the CRT confirmed that the complainant’s decision to file a psychological harassment complaint against her colleagues that she knew was unfounded constituted a serious breach of her duty of loyalty. This was a clear case of the abusive exercise of the right to file a complaint. The CRT dismissed the complainant’s submissions to the effect that her complaint had to be founded given that the Commission des normes du travail had reviewed it and accepted to transfer it to the CRT for hearing, on the grounds that nothing could be inferred from that simple fact.Furthermore, the CRT also agreed with the initial panel with respect to the legal qualification of the complainant’s actions when recording several conversations she had with her superiors. Even if the employer had not taken this fact into consideration when dismissing the complainant given that it was unaware of the very existence of these recordings until the initial hearing, the CRT was of the view that this constituted evidence of facts which occurred subsequent to the dismissal and which was admissible in the case under review.In fact, this evidence confirmed that the employer’s conclusions that the complainant’s bad faith and disloyalty constituted a basis for her dismissal were justified and it was not unreasonable for the tribunal to take such evidence into account. By acting in such a way, without a valid reason and for the sole purpose of supporting her harassment allegations after the fact, the complainant broke the trust which is necessary in any employment relationship. This again constituted a serious breach of her duty of loyalty.Finally, the CRT confirmed the reasoning of the initial panel with respect to its conclusion that the principle of progressive discipline did not apply in this situation. It noted that this principle cannot apply in the case of a serious fault, such as a breach of the duty of loyalty, or in the case of irreversible conduct on the part of an employee. Holding that the complainant’s behaviour met both these criteria, her employer was justified in dismissing her despite an unblemished disciplinary record.This decision is currently the subject of judicial review proceedings before the Superior Court.

On April 1, 2014, the Superior Court issued an interesting decision respecting consent to care1. The Quebec City CHU petitioned the Superior Court in order to be authorized to provide care for a 60-day period to a patient despite the refusal of her parents.On March 14, the 22 years old patient suffered cardiac arrest following an intravenous drug overdose. She was in a coma since being admitted to the CHU and, despite the various imaging tests performed, neither a diagnosis nor a clear prognosis could be established. It was unfortunately very possible that the patient had suffered permanent cognitive and motor damage due to lack of oxygen to the brain.The medical team essentially wished to extubate, reintubate if necessary and provide feeding and hydration care to the patient for a 60-day period, which would allow the team to obtain probative clinical signs. For their part, the parents wanted to put an end to nutritional support and all other feeding or hydration care. They maintained that the wish of their daughter had been to end her own life.The Court stated that it could not infer from the circumstance surrounding the overdose that the defendant knowingly indicated that she did not wish to receive care. It further declared that it was not convinced by a preponderance of evidence that the defendant actually tried to commit suicide. Furthermore, the Court was of the view that the care proposed by the CHU was necessary to the patient’s survival. The care sought in the motion was minimal, essential to life and necessary in order to arrive at a more definitive prognosis. If care was stopped, the patient would die. Accordingly, the care was clearly opportune for the 60-day period as requested by the CHU and the Court authorized it to continue the treatment plan, as well as extubate the defendant and reintubate if necessary._________________________________________1 CHU de Québec v. M.G., 2014 QCCS 1404.

Canada has recently seen a surge of patent validity challenges based on lack of utility.  Utility is a legal requirement for patent validity; an “invention” must have some stated or implied practical use to fulfill the requirements of the Patent Act.  Normally, a scintilla of usefulness is enough.  However, if the patentee promises something more in the patent specification, he or she will be held to that promise. Goudreau Gage Dubuc, one of the leading intellectual property firms in Canada, joins Lavery Lawyers. The two firms have integrated their operations in order to offer their clients a complete range of legal services. The integration consolidates Lavery’s multidisciplinary approach. As the largest independent law firm in Quebec, Lavery is continuing to grow by adding the expertise brought by lawyers, patent agents and trademark agents specializing in intellectual property law, who belong to one of the most respected teams in the country. To learn more, visit www.YourIPLawyers.ca. --> In the pharmaceutical area, the legal concept requires that at the date of the filing of the patent application, the applicant must possess utility data based on actual tests showing drug activity for the intended use or, at the very least, indirect tests showing a “sound prediction” that the claimed invention will perform the intended use.  This is the so-called doctrine of “sound prediction”. The doctrine of “sound prediction” is not limited to pharmaceutical patents.  As the recent Eurocopter decision shows (2013 FCA 219), it also applies to mechanical inventions.  In the Eurocopter case, an improved sleigh-type landing gear with forward-offset helicopter fuselage forward attachment points were tested and found to reduce “ground resonance” upon landing.  Although claimed, the backward-offset attachment points were not similarly tested and “sound prediction” of utility was not found.  Thus, many of the claims were found invalid for lack of utility. This has fueled the trend for patent challengers to show that a patent “promises” more than it delivers.  For example, the patent specification promises a given result or given use and fails to deliver on that “promise” and is therefore invalid as lacking the promised utility. Case in point, in Apotex v. Pfizer (2011 FCA 236), the Federal Court of Appeal found that a glaucoma eye drop patent was invalid because it “promised” less eye irritation and the supporting data was insufficient.  The testing data reported in the patent were single-dose tests as opposed to long-term studies.  The Court of Appeal found fault in the single-dose data because glaucoma is a chronic disease.  In other words, eye irritation could have appeared upon long-term use, which remained untested.  This decision raised eyebrows (pun intended) all over the world.  Canada was quickly becoming the “odd man out” with regards to imposing strict requirements for utility. In 2012, the same Court of Appeal began to downplay the “promise” attack.  In Mylan Pharmaceuticals v. Pfizer (2012 FCA 103), the patent on the Alzheimer disease drug ARICEPT® was found valid despite a “promise” attack. Mylan was asserting that the patent promised higher efficacy and lower toxicity than other known drugs.  The Court disagreed and focused on the language of the claims, which held no such promise and concluded that other statements in the patent specification were merely “potential advantages” as opposed to promises. This tendency has now been confirmed in 2013. The Federal Court of Appeal in Sanofi-Aventis v. Apotex (2013 FCA 186) continues to distance itself from validity attacks based on alleged promises.  This decision is the latest chapter in an epic legal battle pitting generic powerhouse Apotex Inc. and Sanofi-Aventis over the successful blood thinning (anti-platelet) drug PLAVIX®. Sanofi had initially blocked Apotex from entering the market by filing a motion in the Federal Court for an order prohibiting the Minister of Health from issuing a Notice of Compliance (NOC), because Apotex would infringe the patent if it was given marketing approval.  In a NOC proceeding, the sole aim is to have a court decide if, on a balance of evidence, the arguments put forth by the generic applicant on issues of patent invalidity or non-infringement, are justified.  Once an argument is presented by the generic applicant the patent holder or licensee must show that the argument is not justified.  If this is shown, the Minister of Health will be prohibited from allowing marketing approval.  Apotex did not prevail on the NOC proceeding but did appeal the case all the way to the Supreme Court of Canada, which ultimately sided with Sanofi in a landmark decision that found the claimed invention to possess the required utility and to be non-obvious. Undeterred, Apotex launched a formal invalidity action (as opposed to a NOC proceeding) in the very same Federal Court, based on lack of utility and obviousness.  Stunningly, Apotex won and the patent was found invalid for lack of utility and obviousness (2012 FC 1486).  The judge reasoned that the evidence before him was different than the evidence presented in the NOC proceedings and that he was not bound by earlier decisions, including the Supreme Court decision. With the patent out of the way, Apotex was quickly granted marketing approval for its generic version of PLAVIX®.  Sanofi appealed and sued for patent infringement. The Federal Court of Appeal, in a unanimous decision (2013 FCA 186), overturned the trial decision and took time to clarify the concept of “promise of the patent”. The court began by noting that an inventor is not obligated to disclose utility data in a patent specification.  The data must however have been available to the patentee when filing the patent application; otherwise the utility of the invention would be speculative. The court then cautioned that if a patentee chooses to promise a particular result in a patent specification, the patentee will be held to that promise (Consolboard Inc. v. MacMillan Bloedel (Saskatchewan) Ltd., 1981, 1 S.C.R. 504 (SCC)).  But then again not all patents contain a promise and “Courts should not strive to find ways to defeat otherwise valid patents.” The patent in question contained animal model data as opposed to data from studies on human subjects.  The trial judge had found that the patent contained an implied promise of utility in humans and failed to deliver on that promise.  The Court of Appeal disagreed.  It took issue with the trial judge’s finding that the patent “promised” utility in humans on the basis of inferences as opposed to clear language.  The decision reminds us that the commonly found statements of objectives or advantages in a patent specification will not automatically rise to the level of a “promise”.  A “promise” will only be found in cases of clear and unambiguous statements. Finally, the Court of Appeal was of the view that evidence on the issue of obviousness had already been considered by the Supreme Court and that the trial judge was wrong to depart from the earlier finding of the Supreme Court. Despite the receding threat of patent invalidity based on “promise” attacks, patentees should remain cautious.  It is important to avoid overstating advantages of the invention for fear of not having enough data to support such statements.  Also, if any utility is based on “sound prediction”, indirect test data or mathematical correlations should be referred to and explained in the patent specification.  After filing, it will be too late to generate further evidence of utility. At the time of publishing this article, Apotex is seeking leave to appeal the case in the Supreme Court of Canada. It is hoped that the Supreme Court of Canada, should it hear the case, will shed better light on the utility requirements, the notion of “promise” and the doctrine of “sound prediction”. Author’s Note:  This review article does not constitute legal advice and should not be substituted for legal advice.  The views expressed are those of the author alone.

This publication was authored by Luc Thibaudeau, former partner of Lavery and now judge in the Civil Division of the Court of Québec, District of Longueuil. The title of this newsletter gives a good summary of the explanatory notes that serve as an introduction to Bill 14, entitled An Act to amend the Charter of the French language, the Charter of human rights and freedoms and other legislative provisions (the “Bill”). The legislator is concerned that English is being used systematically in certain workplaces. The Bill was tabled on December 5, 2012 and the proposed amendments are designed to reaffirm the primacy of French as the official and common language of Quebec.

Harmonization of Clinical Research Contracts in Quebec Recent Cases in the Quebec Court of Appeal on Authorization of Care

On August 25th, the Court of Appeal, for the reasons of Justice Nicholas Kasirer, rendered a significant decision with regard to the duty of care required from ski instructors and the assessment of damages awarded to a victim who developed a serious neurological disorder resulting from a ski accident. In their capacity as tutors of their child (referred to as “X” in the judgment), as well as in their personal capacity, Plaintiffs claimed damages for approximately $3.8M against Les Stations de la vallée de Saint-Sauveur Inc. and Mont Saint-Sauveur International (hereinafter “MSSI”) pursuant to the ski accident that their child suffered. 

On December 2, 2009, The Superior Court upheld a decision of the Commission des relations de travail which concluded that nurses hired through an employment agency were employees of the health-care facility and, therefore, covered by the bargaining certificate of the union in question.However, the case of Syndicat des professionnelles en soins du CSSS de la Montagne (FIQ) v. Centre de santé et de services sociaux de la Montagne provides a different perspective on the same issue of determining who the employer of employment agency personnel is by assessing the situations of the relevant employees separately according to the respective structures and management methods of different agencies used by the same employer