A year in review: Four legal issues that won’t go away (but you wish they would)

Be it personal or business, January is a time for reflection. A lot can happen over 12 months and we know staying up-to-date on everything going on at CREA can be difficult. Over the next few weeks, we’ll be taking a look back at the year that was in Canadian real estate. Have something to add? Feel free to share in the Comments section below.

I was asked to write about the biggest legal issues in 2017. Sure, I thought. No problem. Then I looked at the legal posts from last year and I realized there were only four. Four! That makes it seem like not much happened in 2017. I assure you that’s not the case.

Without further ado, let’s look at what was big in 2017:

CASL. The private right of action was supposed to come into force but was delayed at the last minute. The transition period for implied consent on certain commercial electronic messages ended, and the three-year review of the regime commenced. We’re still waiting to hear the outcome of the three-year review.

Copyright. We wrote last year about creating a chain of title over copyrighted listing elements.

This post wasn’t written because of any important development that happened, though it coincided with a lot of publicity surrounding copyright ownership over a monkey selfie (seriously, Google it).

The most important copyright development was the decision from the Federal Court of Appeal in the Toronto Real Estate Board (TREB) litigation, which just snuck in at the end of the year with the decision being published on December 1. The decision concluded TREB did not provide enough evidence to establish copyright over their MLS® System database. There were privacy and competition issues addressed in the court’s decision as well, which TREB is also seeking leave to appeal. We’ll be sure to share news of any developments as they happen.

Trademarks. Although trademarks are always important to me, there were no real developments in 2017. No big cases, no rule changes, nothing.

Some amendments were made to the Trademarks Act a couple years ago that haven’t come into force yet because the regulations aren’t finalized. The proposed regulations were published in 2017 so we might finally see these changes come into force this year. If they do, you’ll be able to trademark smells and holograms – or smelly holograms!

FINTRAC. This is a topic where there were no big developments in 2017 but there could be some changes in 2018. My colleague and FINTRAC guru, Simon Parham, will keep you updated if there is news on that front.

That’s it for 2017. Follow CREA Café in 2018 as we continue to update you on legal issues that do or can affect your business.

The article above is for information purposes and is not legal advice or a substitute for legal counsel.

Allison McLure, former Legal Counsel, provided advice to CREA, boards, and associations on intellectual property law, DDF®, and Canada’s anti-spam legislation, as well as protected CREA’s trademarks and helped members comply with federal legislation and CREA’s trademark rules.


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