Subway vs Budway, Highlands mine in the BCCA, and privacy vs open courts

This week on Legally Speaking with Michael Mulligan:

Budway, a Vancouver marijuana store, has been using a logo similar to the Subway sandwich logo. Budway also had a mascot in the form of a submarine sandwich filled with cannabis leaves, with bloodshot, half-open eyes. 

Subway sued Budway, alleging various breaches of the Trademarks Act. 

One of the issues in the case was whether what Budway was doing amounted to “passing off” This can occur if consumers could be misled into believing that something is being manufactured, sold, or performed by a different company. 

Last year, Toys “R” US sued another Vancouver marijuana store called Herbs “R” US. In that case, while Toys “R” US was successful in proving that their goodwill was being depreciated by Herbs “R” US, they failed to prove that Herbs “R” US was engaged in passing off because even a casual consumer would not think the same company that sold toys was also selling marijuana. 

Subway was successful in their passing off claim because the Subway trademark was related to the sale of things including cookies, muffins, and pastries.

Budway was selling marijuana edibles, including cookies and brownies, and has posted an online video promoting Munchie Monday with 10% off all edibles. 

Subway was awarded $15,000 in damages plus $25,000 in legal costs. 

Also on the show, the Highlands District Community Association was unsuccessful in the BC Court of Appeal challenging the decision of the Mines Inspector to approve a mine in the District of Highlands. 

Unlike other kinds of development, municipalities don’t decide if a mine can be built. That decision is made by the Mines Inspector: a provincial government official. 

The community association argued that the Mines Inspector was obliged to consider the climate change implications of permitting the mine. 

On a judicial review of an administrative decision, judges are not permitted to just make whatever decision they think would be best. Judges can only overturn an administrative decision, such as the one to permit the mine, if they conclude the decision was unreasonable, or if there was no authority to make the decision. 

In this case, the Court of Appeal agreed that climate change was important and found that the Mines Inspector would be permitted to consider it, however, all three judges agreed that the Mines Inspector’s decision was not made unreasonable by his decision not to seek out evidence about how the proposed mine would impact climate change. 

Finally, on the show, a Supreme Court of Canada case involving how privacy interest should be weighed against the principle that courts are to be open and transparent. 

The case involved an application by the estate of a wealthy Toronto couple, who was murdered in 2017, to keep the estate file private. 

The Supreme Court of Canada concluded that the file should not be sealed because ensuring court decisions were open to the public was important and an essential feature of a democracy. It’s important that the public be able to know what’s happening when courts make decisions. 

The Supreme Court of Canada did find that, in limited circumstances, court proceedings could be sealed when allowing access would undermine the dignity of individuals involved by permitting access to private information that was so sensitive that it could be said to strike at the biographical core of the individual.

Follow this link for a transcript of the show and links to the cases discussed.