Appeal Watch: Domain Names as Personal Property, Wrong Diagnosis in Assisted Suicide Case and More Woes for Would-be Immigrants
SCC Won’t Weigh in on Whether Domain Names are Property
On May 24th, the Supreme Court of Canada denied leave to appeal with respect to the Ontario Court of Appeal’s decision in Tucows.Com Co. v Lojas Renner S.A. 2011 ONCA 548. Tucows.com Co. (“Tucows”) and Lojas Renner S.A. (“Renner”) disputed Tucows’s right to keep the domain name <renner.com> in the face of Renner’s registered trademark “Renner”. Tucows is a technology corporation incorporated in Nova Scotia whose principal office is located in Toronto, Ontario. On June 15, 2006, Tucows purchased the domain name <renner.com> from Mailbank Inc., along with over 30,000 other surname domain names. It is also the registrant of that domain name with the internationally-recognized non-profit organization, the Internet Corporation for Assigned Names and Numbers. On the other hand, Renner is a Brazilian company operating a series of retail department stores in Brazil and is the registered owner in Brazil and other countries of the trademark “Renner”.
What was at issue in this case was whether a domain name can be considered personal property. The court went through various avenues to contrive a solution, looking to academic scholarship and Canadian and international jurisprudence for a deeper understanding of the issue. Ultimately, the court found that found Tucows has a bundle of rights in the domain name Renner.com, thereby constituting “personal property” within in the meaning of rule 17.02(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
With so many businesses relying on domain names for the success of their enterprise, this decision may have severe consequences, particularly on the Canadian businesses. Additionally, the emerging field of internet law is constantly transforming as a result of new caselaw. In this case, the Ontario Court of Appeal relied on various non-Canadian sources to further develop caselaw. And it seems as though the Ontario court will have the last word, as this case will not go up to the Supreme Court of Canada.
Rasouli: Would a Wrong Diagnosis Thwart This Case?
This year marks the thirty-year anniversary of the Charter of Rights and Freedom. When the Globe and Mail polled its readers as to which Charter-based case most improved or diminished Canadian life, most of them saw eye-to-eye with the Supreme Court of Canada. One case, however, stood out as the least popular decision in the Charter’s thirty-year history: Rodriguez v British Columbia (Attorney General), 3 SCR 519. The issue at the heart of that famous, or infamous, 1993 case was assisted suicide. The provision in the Criminal Code that makes it illegal to “aid or abet a person to commit suicide” was upheld by a split court (5-4).
The issue has certainly not been put to rest, though. In recent years, cases very similar to that of Sue Rodriguez have come up the court system. Most recently, a British Columbia court heard the case of Carter v Canada (Attorney General), 2011 BCSC 1371, involving a woman named Gloria Taylor who, like Sue Rodriguez, suffers from Lou Gehrig’s disease (ALS). Other applicants in the case include a couple who helped their elderly mother fly to Switzerland for an assisted suicide and a doctor who is seeking the right to help his terminally-ill patients have assisted suicides. Regardless of how the case is decided by the British Columbia Court of Appeal this year, most legal commentators speculate that it will be appealed to the highest court in the country.
Earlier this month, the Supreme Court of Canada agreed to hear the case of Hassan Rasouli, which concerns withholding a patient’s life-sustaining treatment (Rasouli v Sunnybrook Health Services Centre, 2011 ONCA 482). The Rasouli case, like all the others, was controversial in and of itself. What makes it even more controversial is a recent development that questions whether Rasouli is really in a persistent vegetative state. The Globe and Mail reported that doctors originally diagnosed Rasouli as being in a persistent vegetative state, never able to regain a degree of consciousness again. Basically, his case was hopeless. Doctors therefore fought with the Rasouli family to withdraw life support and allow him to die. Rasouli’s wife refused, which is how the legal action first commenced. In the first week of May, it was reported that Mr. Rasouli can respond to certain triggers, and give a “thumbs up”; he has some awareness and ability to control his movements. He could not be in a persistent vegetative state then.
This recent development may make the case argued by the appellants, the doctors at Sunnybrook Hospital, moot. The doctors may have no good reason to remove his life support anymore. Doctors are conducting further tests to determine if there is any brain activity in Mr. Hassan Rasouli. As of right now, the Supreme Court of Canada is still scheduled to hear this case.
Legal commentators would encourage the case to go further. Despite the decision in Rodriguez and lower court decision in Rasouli, there remains much uncertainty regarding assisted suicide. For example, this case would force us to tackle the question of whether medical factors alone can grant doctors the power to refuse to provide life-sustaining treatment. Doctors sometimes get the diagnosis wrong, as may be the case in Rasouli. Doctors are humans after all. So does that mean that patients, or their substitute decision makers, can unilaterally demand life-sustaining treatment no matter what the odds are? These are very loaded questions, and arguably better left answered by the legislature than by the judiciary. However, with Rasouli, the Supreme Court of Canada can offer important guidance to hospitals, doctors and patients.
Land of Broken Dreams? Cancelled Canadian Immigration Applications Will Not Be Kept Open
The federal government’s recent decision to cancel approximately 280,000 immigration application filed before 2008 has sparked outrage, anger and despair among the hundreds of thousands of potential immigrants affected by the new policy. The immediate consequence of the decision was the filing of a class-action lawsuit against the Canadian government. The lawsuit sought damages for lost time and effort, such as for planning one’s imminent arrival in Canada. The Canadian government periodically communicated with the would-be immigrants, asking for more information and acknowledging the receipt of their applications along with the assurances that they would be processed; this was cited as an important factor in the pending lawsuit.
The would-be immigrants had asked for the files to remain open while their lawsuit was pending hearing in the courts, which the judge refused. According to the judge, there was no proof that the assurances that the applications would be reviewed ‘in a timely fashion’ were, in fact, enough to create a contractual obligation between the Canadian government and the appellants. Even though the Canadian courts are still scheduled to hear the case on June 5, 2012, this has added even more woes to the application process of these would-be immigrants.
And even though Citizenship and Immigration Minister Jason Kenney has cited economic reasons for the cancellation, namely that the backlog would slow the system down and create inefficiency, the fact remains that many potential migrants have a lot more at stake than just looking for better economic opportunities in Canada. A pending immigration application was a sign of hope for those wishing for a new life for their families, and one that would allow some escape from regimes that place limits on personal freedoms and choices. It remains to be seen whether the pending lawsuit can provide a happy ending for these anxious applicants.