Evidence of meeting #66 for Industry, Science and Technology in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was athletes.
A recording is available from Parliament.
11 a.m.
Conservative
11 a.m.
Conservative
Colin Carrie Conservative Oshawa, ON
I just wanted to take the opportunity to say that I feel it does interfere with the right holder's decision, in this case VANOC. So the government will be voting no to this particular clause.
Thank you.
11 a.m.
NDP
Brian Masse NDP Windsor West, ON
Thank you, Mr. Chair.
This still leaves the community not-for-profit groups out. So I'll stand with the motion.
(Amendment negatived) [See Minutes of Proceedings]
(Clause 4 agreed to)
(On clause 5--Remedies)
11 a.m.
Bloc
Luc Malo Bloc Verchères—Les Patriotes, QC
We have received clarification as to who can file for an injunction, and Ms. Rowden has provided us with her interpretation of the situation. From what I gather, a business cannot file for an injunction itself, unless it has not received an answer from VANOC within the 10-day timeframe. If VANOC determines that there are no grounds for taking the matter to court, the business cannot then decide to do so of its own accord.
Is my interpretation correct?
11:05 a.m.
Director General, Marketplace Framework Policy Branch, Department of Industry
Absolutely. The provision stipulates that only VANOC, the COC or the CPC will be able to initiate legal proceedings. With the written consent of VANOC, sponsors will also be able to request that legal proceedings be undertaken, and VANOC will have 10 days to answer.
We decided to give this option to the sponsors, even although VANOC, the COC and the CPC are the rights holders. As the sponsors have economic interests at stake, and as they are essentially partners, they will be able to provide information and input to VANOC that might influence the organization's decision. The final decision, however, remains in the hands of VANOC. It was important to us that it be so, as we have to protect the reputation of the Olympics.
11:05 a.m.
Conservative
The Chair Conservative James Rajotte
Are there any others?
(Clause 5 agreed to)
(On clause 6--Interim or interlocutory injunction)
11:05 a.m.
Conservative
The Chair Conservative James Rajotte
There are some concerns about clause 6, and I do have one amendment. But I have a question for the panel, which some members have asked me to raise. I'd like to state it and have the members of the panel address it. It deals mainly with the testimony from IPIC.
IPIC asserts that the provisions of Bill C-47 are inconsistent with other laws. They have stated that the bill sets a different standard for interlocutory injunctions from that applied by the courts in Canada, and that it removes the need to show clear or unequivocal irreparable harm that cannot be compensated by monetary damages that might be awarded after trial.
So could you comment on IPIC's concerns with respect to interlocutory injunctions and its recommendation to delete clause 6 of the bill? In other words, why is clause 6 required? That's the first issue.
Secondly, failing deletion of this clause, IPIC recommends that it be amended to state that
if a court finds reasonable grounds to conclude that the activities of a party will cause the public to believe that the activities are “approved, authorized or endorsed” then that shall be deemed to be evidence of irreparable harm.
Could you comment on this recommendation for us?
11:05 a.m.
Director General, Marketplace Framework Policy Branch, Department of Industry
Yes, thank you, Mr. Chair.
I'll turn to my colleague Ms. Carreau to respond to this.
11:05 a.m.
Counsel, Industry Canada, Legal Services
The first point that was raised, Mr. Chair, is with respect to inconsistency with other laws. This is not inconsistent with other laws. There is a three-pronged test in the common law dealing with what is required to be granted an injunction.
The government's position is that a specific change is required in this circumstance to do away with the requirement of irreparable harm. So to that extent, we are changing the test as it stands with respect to injunctions, but it is not inconsistent.
It's required primarily because it is very difficult in these types of cases for a party moving to get an injunction in an intellectual property case to prove irreparable harm, largely because we're dealing with money. The court generally comes back and says, “Well, we can just satisfy the claimant and pay them later”, so the conduct can continue, to the detriment of the applicant, and in this case it will be VANOC. So the infringing activity can continue and later on VANOC would be compensated for all the damages that had accrued over the course of the games.
The government's position is that this is not acceptable during the Olympic Games. The intent is to remedy the situation immediately and to stop that activity from happening and not deal with compensating in money later. The damage will have already been done and perhaps cannot be compensated in damages.
Do you want me to comment on their deeming provision?
11:10 a.m.
Counsel, Industry Canada, Legal Services
I fail to see any substantive difference actually between what IPIC is proposing and what the government has already done. What they're proposing is to deem a contravention of section 4 to be evidence of irreparable harm.
The court still has to look at the other two parts of the test. And most importantly, the court has to look at whether there is a serious issue here to be tried. And in looking at the serious issue, the court is going to be looking at the merits of the case, and in particular whether there is a prima facie case that there has been a breach of our section 3 or our section 4 of the act.
So the court is going to be looking at that evidence in any event. So there is really, in my view, no substantive difference between what IPIC has proposed and what the government has proposed.
In moving forward, VANOC is going to have to demonstrate that there is adequate evidence to support their cause of action under section 3 or section 4, and the court is going to have to be satisfied that there is a serious issue to be tried with respect to the contravention of section 3 or section 4 before moving forward.
I think it's also important to mention that there is a balance of convenience test and that it's not just a waiving of the irreparable harm. We're going to look at serious issue, and we're also going to look at the balance of convenience. Where does the convenience lie? Is it more convenient to give the injunction to VANOC, or is it more convenient to let the party who is alleged to have infringed to continue its activity pending trial?
Another point that's worth mentioning is that under the various rules of court, the party moving for an injunction—and in this case it would be VANOC—is in most cases required to provide an undertaking with respect to damages. So, assuming that VANOC gets an injunction and the court later finds at trial that it was an improper injunction, VANOC would be liable to pay damages to that party that they alleged had contravened this bill.
Lastly, this is not an unprecedented amendment. We have examples of this in the United States; in Australia's Sydney Games, the act of 2000; and even in our own 1976 act for the Montreal Games.
11:10 a.m.
Conservative
The Chair Conservative James Rajotte
Thank you very much for that. It was helpful--for me, at least.
I have Mr. Carrie on the list.
11:10 a.m.
Conservative
Colin Carrie Conservative Oshawa, ON
I just wanted to reiterate that this is a timing issue, the importance of the Olympics, our international reputation, and to remind everybody that this does end at the end of 2010. It's not permanent.
11:10 a.m.
Conservative
11:10 a.m.
Liberal
Dan McTeague Liberal Pickering—Scarborough East, ON
Mr. Chair, we had some concerns I want to address.
Mr. Carrie's comment is correct. I did raise the issue of timing. And I'm more than satisfied with the comments of Madame Carreau with respect to the safeguards that are there.
We had looked at the possibility of an amendment. Mr. Chair, we won't be making an amendment.
11:10 a.m.
Conservative
The Chair Conservative James Rajotte
Thank you, and thank you very much for that clarification.
We now, under clause 6, have amendment NDP-3, page 9. I'll get Mr. Masse to speak to that, and then I'll have Mr. Carrie.
Mr. Masse.
11:10 a.m.
NDP
Brian Masse NDP Windsor West, ON
Thank you, Mr. Chair.
There are, I guess, two different ways we can go at this. What we're proposing is to create a system outside of the courts that would provide an opportunity for someone to appeal to an actual process that would give them the opportunity to be heard by a judge with legal experience in intellectual property to be able to make a decision about the injunction. We've put it for 48 hours because we know time is of the essence for both sides in some type of a dispute.
We think this would be beneficial to making sure that it would be seen as independent, so that VANOC isn't seen as the judge, jury, and sentencer of an issue, whereas it's now going to have an independent judge, someone who has some experience and will be able to get that person or persons before the actual Olympics and have a prescribed process for injurious effect and also how to appeal for an injunction beforehand.
It's as simple as that. The other way is to send it back to the courts. We've heard evidence today, and it's not a perfect system—I recognize that—but once again, I'm concerned about just throwing everything back in the courts and we have no guarantee that the proper process or facilities and timing will be made available for individuals. That burden will probably be greater than an independent process that could lighten that burden, especially for certain groups and organizations.
11:15 a.m.
Conservative
The Chair Conservative James Rajotte
Okay, thank you, Mr. Masse.
Next I have Mr. Carrie and Monsieur Arthur.
Mr. Carrie.
11:15 a.m.
Conservative
11:15 a.m.
Director General, Marketplace Framework Policy Branch, Department of Industry
Yes, thank you.
I want to clarify that my reference to IPIC earlier was in respect to this motion and not the earlier motion about the not-for-profit. Ms. Rowden was responding to this, saying that—and I'm paraphrasing it—there are differences of views as to whether or not it's a good system. Therefore, you'll not be surprised that we also have concerns about this motion.
On the first part, really, the right of appeal exists in any case, in any event. So, to us, it appears a bit redundant to actually put it in the bill. The right of appeal does exist.
The second paragraph I'll let my colleague from the justice department respond to more adequately. It is difficult for an act to actually be imposing a time limitation on the courts to turn around a decision or hear a case. As IPIC mentioned earlier today, there are ways to expedite a process. Parties get together and a case can be heard very quickly.
Therefore, again, it's unprecedented in IP statutes, and then there are other mechanisms that seem to work properly now to actually speed up the process. So, for those two reasons, we think it is perhaps not necessary or a good idea to entertain this kind of amendment.
11:15 a.m.
Counsel, Industry Canada, Legal Services
Your concern seems to be related to having an independent judge hear the matter, and that is exactly what's going to happen, because these applications are going to be brought to the Federal Court or to the superior court of a province, and the judges are appointed to be independent decision-makers in that regard and have particular expertise, as determined by the courts. That is built into the mechanism, and that is why we have recourse to the courts already established to deal with that.
The provincial courts, for instance, have special expertise. This is considered an equitable remedy at law, and provincial courts have specialized expertise in dealing with equitable remedies. The federal court likewise has provisions dealing with interlocutory injunctions, interim injunctions. and appeals therefrom, so it would be practically impossible to do this from an administrative-type situation. But I think you can rest assured that cases do proceed on an expedited basis, especially when they involve injunctions. It's just the nature of the beast.