Cases considered: Stack v. Hildebrand, 2008 ABQB 668.

PDF Version: Investors should be cautious about investing in viatical settlements

As a result of the credit crunch, investors have become wary of risky investments. In its 2006 study, the BC Law Institute noted that, like many asset-backed instruments, viatical investments (or viaticals) are very risky investments. A typical viatical settlement occurs when an insured person sells his or her entitlement to receive a life insurance policy’s death benefit to a financial company who later sells a fractionalized portion of the entitlement to an investor. The financial company typically pays the premiums of the insurance policy. The primary risk is that the insured person will exceed his or her life expectancy. Another risk is that the financial company does not pay the premiums. Stack v. Hildebrand, 2008 ABQB 668 is a reminder that investors need to be cautious when considering investments in viaticals.

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Cases Considered: Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333; Athey v. Leonati, [1996] 3 S.C.R. 458  Snell v. Farrell, [1990] 2 S.C.R. 311.

PDF Version:  Torts, Tasers and Causation

The recent deaths that occurred in Calgary and Edmonton following the use of a conducted energy weapon (generically referred to here as a “taser”) have once again raised the issue of the appropriate use of tasers in policing. In fact, there have been at least 20 deaths in Canada following the use of tasers. The British Columbia Civil Liberties Association and Amnesty International Canada have called for a moratorium on their use. The RCMP Public Complaints Commissioner called for a moratorium on their use if the RCMP cannot properly instruct its members to appropriately deploy the taser in an operational setting. It is in this context that the Alberta Solicitor General, Fred Lindsay, and the Premier of Alberta, Ed Stelmach, downplayed the possibility that the use of a taser can cause death. This post argues that, notwithstanding the opinions of these elected officials regarding causation, it is possible for police officers to be found liable in negligence as a result of using a taser.

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Cases Considered: Divine Pet Spa Ltd. v Divine Doggies Spa & Boutique Inc., 2008 ABQB 618

PDF Version: Use of a corporate name or registered trade name does not prevent liability for passing off

Charisma Snyder registered a trade name “Divine Doggies Grooming & Boutique” on July 27, 2007 and “Divine Doggies Spa & Boutique” on August 14, 2007. A later name search did not reveal “Divine Pet Spa”, either as part of a corporate name or a trade-mark, so she incorporated Divine Doggies Spa & Boutique Inc. on September 8, 2007. It commenced dog grooming services in June, 2008. As early as 2006, however, Divine Pet Spa Ltd. had engaged in significant marketing of its cat and dog grooming business in order to create goodwill in the Calgary marketplace. In Divine Pet Spa Ltd. v Divine Doggies Spa & Boutique Inc., 2008 ABQB 618, Madam Justice C.L. Kenny of the Alberta Court of Queen’s Bench granted Divine Pet Spa Ltd. an interlocutory injunction against Divine Doggies Spa & Boutique Inc., restraining it from using and advertising the name “Divine Doggies Spa”. This decision is a reminder that, by using its corporate name or registered trade name, a business can be liable in tort law for passing off its products or services as those of another business.

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Cases Considered:  Chernetz v. Eagle Copters Maintenance Ltd., 2008 ABCA 265

PDF Version:   Proof of Future Economic Losses in Tort Law

In 1999, Harry Chernetz was killed in a helicopter crash. In an action against the helicopter operator and its maintenance company, his estate, his wife and their three teenaged children were awarded damages exceeding $3 million under the Fatal Accidents Act, R.S.A. 2000, c. F-8. The plaintiffs appealed, submitting, amongst other things, that in assessing the loss of future income, the trial judge wrongly required the plaintiff to prove what Harry Chernetz would have earned had the tort not occurred on a balance of the probabilities. Instead, the appellants contended, the trial judge should have attached probabilities to what Harry Chernetz might have earned, as a real and substantial possibility, had the tort not occurred, and calculated the expected earnings. The Alberta Court of Appeal (per Justices Constance Hunt, Clifton O’Brien and Alan Macleod) found that the trial judge applied the wrong standard of proof to isolated issues only and, for reasons of economy of judicial time and resources as well as fairness, ordered the action to be remitted to the trial judge to remedy the isolated errors identified by the Court of Appeal. Unfortunately, given the nature of the principles involved in assessing future economic loss, where there is a lack of clarity in the application of such principles by the trial judge, it may not be possible in principle for the Court of Appeal to accurately identify the errors.

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Cases, Legislation and Proposed Legislation Considered: Bill C-61, An Act to Amend the Copyright Act, WIPO Copyright Treaty; Performances and Phonograms Treaty; Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34 ; CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13.

PDF Version:  Bill C-61 Locks Out User Rights

Bill C-61, An Act to Amend the Copyright Act, tabled in the House of Commons by Alberta MP Jim Prentice on June 12^th, 2008, contains proposed amendments to the Copyright Act designed to allow Canada to implement and ratify the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (“Internet Treaties”). The centerpiece of the Bill is s. 41, which generally prohibits the circumvention of technological measures; that is, apart from a few narrow exceptions, it prohibits the unlocking of digital locks on content such as software, digitized music, digitized books and other protected subject matter, even for the purpose of exercising user rights recognized in the Copyright Act, such as fair dealing, and for some rights explicitly recognized in Bill C-61 (e.g. for time shifting or device shifting).  Bill C-61 goes further still, generally prohibiting unlocking services and dealing in keys to allow the unlocking of digital locks on content. Unfortunately, such provisions are at odds with the idea that owners’ rights in protected subject matter should be balanced with users’ rights in that subject matter. Read the rest of this entry »

PDF Version: A Note on Integrity in Treaty-Making & Copyright Law

In the William Howard Lecture delivered at the University of Calgary on February 8th, 2008, Jim Prentice, Minister of Industry of the Government of Canada, spoke about the virtue of integrity in regulating greenhouse gases. He noted that “[i]t takes integrity to strike the right balance and to draw the lines that will eventually become law which our industries will comply with.” Prentice is also the lead Minister responsible for copyright. So, while Prentice used environmental legislation to illustrate his point about striking the right balance, it was not lost on the audience that the integrity of legislators and the legislative process is also relevant to striking the right balance between copyrights and other values.

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