Case Law in Canada

Question 1

CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13

Answer 1

Landmark case that set the precedent for the copyright exception of fair dealings.

In order to show that a dealing was fair, a defendant must prove:

1. Dealing for the purpose of research or private study [51]:
   Research has a large and liberal interpretation and is not limited to non-commercial or private contexts.
2. It was fair [53-60]:
   
   1. ​The Purpose of the Dealing: fair if research, private study, criticism, review or news reporting.
   2. The Character of the Dealing: multiple copies or single copy, destroyed after used or kept, common practices in a particular trade are considered if relevant.
   3. The Amount of the Dealing: how much of the work was copied and was it necessary to copy that much?
   4. Alternatives to the Dealing: is copying absolutely necessary or were there alternatives available to achieve the same purpose?
   5. The Nature of the Work: Is it published, unpublished, or confidential? Fiction or non-fiction could possibly play a role here.
   6. Effect of the Dealing on the Work: is the reproduced work competing with the market of the original work or helping it? This is an important factor but it’s neither the only nor the most important factor.

Question 2

Gilbert’s LLP v. David Dixon Inc., 2017 ONSC 1345

Answer 2

Establishes that lawyers are entitled to bring an action to recover fees in the Superior Court as well as a solicitor/client assessment hearing if they have a simple or usual fee agreement. It was previously held that a lawyer could not bring an action in the Superior Court unless there was a bona fide dispute regarding the validity or authenticity of the fee agreement.

Also comments on the fact that the Solicitor’s Act is archaic and has provisions that are applicable to English law but not to Ontario law.