South Africa: airline found guilty of employment discrimination

On 28 September 2000, the Constitutional Court of South Africa ruled that South African Airways (SAA) violated the constitutional rights of Jacques Hoffmann in September 1996 by refusing to employ him as a cabin attendant on the ground that he is HIV-positive.

US Supreme Court allows limits on AIDS-related insurance benefits

In a ruling issued on 10 January 2000 with respect to Doe v Mutual of Omaha Insurance, the US Supreme Court refused to review a lower-court decision allowing an insurance company to limit health-care benefits for AIDS-related claims to less than one-tenth of what it pays under the same policies for expenses related to other illnesses. The lower court had ruled that anti-discrimination legislation does not apply to insurance policies.

BC appellate court dismisses insurance appeal

As reported in the last issue of the Newsletter, in September 1997 a British Columbia trial court had dismissed a "wrongful dismissal" claim by the estate of a gay man who died of AIDS against his former employer for damages arising out of his termination, including the loss of his life insurance coverage. The man's estate appealed that decision to the BC Court of Appeal. The Canadian AIDS Society and the BC Persons with AIDS Society were denied leave to intervene before the appellate court to make submissions. The case was heard in October 1999 by the British Columbia Court of Appeal. In December 1999, the Court released its judgment dismissing the appeal.

Federal court of appeal strikes claim for extending patent term

In a short October 1999 decision, Pfizer Inc v Canada, the Federal Court of Appeal affirmed a lower court decision that Canadian law currently provides only 17 years protection for drug patents filed before October 1989, and that the 20-year minimum period stated in intellectual property treaties negotiated under the auspices of the World Trade Organization have not (yet) taken effect in Canada with respect to these drugs.

Victory for transgendered people in gaining protection against discrimination

On 7 June 2000, the BC Supreme Court rejected an attempt by the Vancouver Rape Relief Society to prevent the provincial human rights commission from hearing a complaint that it had discriminated against a transgendered woman. Kimberly Nixon filed a complaint with the BC Human Rights Commission in August 1995, alleging that the Vancouver Rape Relief Society had refused to allow her to work as a volunteer counselor because she had not been biologically female at birth.

Namibia: refusal to enlist HIV-positive in army ruled discriminatory

On 10 May 2000, in N v Minister of Defence, the Labour Court in Windhoek delivered a mixed ruling on HIV-based discrimination in employment that could have significant positive implications for armies throughout the region of southern Africa.

Supreme Court rules on disability discrimination

On 3 May 2000, the Supreme Court of Canada released a unanimous decision involving the interpretation of the term "handicap" in Québec's anti-discrimination legislation in three complaints filed with the province's human rights commission. While none of the cases involved HIV-related discrimination, the Court's strong decision is of definite benefit in protecting and promoting the rights of people with HIV/AIDS, particularly for those living in Québec. The decision recognizes that people are protected against discrimination based on disability even if their condition does not give rise to any functional limitation and the discrimination is based on the perception that they are disabled.

Rapid HIV screening at the point of care: legal and ethical issues

In March 2000, the Canadian HIV/AIDS Legal Network released a comprehensive report entitled Rapid HIV Screening at the Point of Care: Legal and Ethical Issues. The release of the report coincided with the issuing of the first license to sell rapid HIV test kits in Canada for use by health-care professionals at the "point of care," and received considerable media attention. The report makes 23 recommendations to federal and provincial/territorial health officials, health-care professionals and their professional associations and regulatory bodies, and test kit manufacturers, with a view to ensuring that the potential benefits of this testing technology are maximized and the potential harms are prevented or minimized. We reproduce here the executive summary of the report.

Mixed WTO ruling on generic drug development

On 17 March 2000, the World Trade Organization upheld the provision in Canada's patent laws that allows generic drug manufacturers to develop (but not sell) their cheaper versions of patented medicines before the 20-year patients expire. The decision prevents pharmaceutical companies from enjoying market monopolies beyond their patent terms, avoiding what would otherwise be even lengthier delays in the sale of cheaper, generic drugs in Canada. This decision is of significance not only to Canada, but also to other WTO member countries and to all individuals who use pharmaceutical products. However, the decision is not all positive: the WTO also ruled that Canada is violating international agreements by letting generic manufacturers stockpile their versions of patented drugs before patents expire. This article explains the issues, the arguments, and the decision.

Panel recommends significant changes to federal law against discrimination

In a report released on 23 June 2000, the Review Panel tasked by the federal Minister of Justice with reviewing the Canadian Human Rights Act made some welcome recommendations for improving the Act and the way the Canadian Human Rights Commission functions. Three are of particular significance: the recommendation that "social condition" be added to the prohibited grounds for discrimination listed in the Act; the recommendation that the Canadian Human Rights Commission should have, under its governing legislation, the duty to monitor and report to Parliament and the UN Human Rights Committee on the federal government's compliance with international human rights treaties regarding economic, social, and cultural rights; and the recommendation that "gender identity" should be expressly added to the Act as a prohibited ground of discrimination.

Criminal law and HIV/AIDS: update IV

This regular column reviews new developments in the area of criminal prosecutions for HIV transmission or exposure, or developments that have come to our attention since the last issue. Canadian developments are the focus. Cases and legislation from other jurisdictions are only included if they represent a significant development in this area of the law or for the jurisdiction in question.

Court rejects appeal for safe supply of medical marijuana

As previously reported, in a May 1999 decision in Wakeford v Canada, the Ontario Superior Court of Justice granted an HIV-positive man an "interim constitutional exemption" from the provisions in the Controlled Drugs and Substances Act that make it an offence to possess or to produce or cultivate marijuana.

Appeals heard on both medical and non-medical marijuana

In October 1999, the Ontario Court of Appeal heard an appeal in the case of R v Parker. Terry Parker was charged in 1996, after a police raid on his home in which the marijuana plants he was growing to ensure a supply in order to control his epileptic seizures were confiscated.

Canada ordered to implement WTO ruling against "stockpiling" of generic drugs

In the last issue, we reported on a mixed World Trade Organization (WTO) ruling regarding Canada's patent laws, based on a complaint by the member states of the European Communities (joined by the United States). In March 2000, a WTO Panel accepted the provision in Canada's Patent Act that creates an "early working exception" to patent rights--in other words, that allows a third party to use a patented invention during the term of patent protection, as long as the use is for obtaining regulatory approval of an equivalent product to be sold once the patent expires. This was an important victory from the perspective of allowing earlier access to generic versions of patented drugs.

Medical treatment of children with HIV/AIDS

In the last issue of the Newsletter, we reported on the case of a Montréal woman who sought an injunction from the Québec Superior Court to prevent physicians from administering antiretroviral medication to her HIV-positive sons, of whom she had previously lost custody because of her refusal to consent to such medication. In December 1999, the Court of Québec (Youth Division) heard the mother's application to regain custody and an application by the Director of Youth Protection for an order declaring that the children were in need of protection, as well as an order that the children be placed in the physical custody of another family for a period of two years, that the authority to make decisions regarding the children's medical care be removed from the mother and placed with the Director of Youth Protection, and that the children receive the necessary medications and diet. The Court issued its decision on 12 January 2000.

Criminal law and HIV/AIDS: strategic considerations

Richard Elliott's paper on criminal law and HIV/AIDS, an edited and updated version of his presentation at "Putting Third First," sets out five guiding principles for criminal law policy and HIV/AIDS; briefly outlines the rationales for criminalization; discusses three strategic legal questions regarding the criminalization of HIV transmission/exposure; and offers a number of recommendations for consideration of those needing to articulate a well-considered perspective on the ethical, legal, human rights, and public health dimensions of the criminalization of HIV transmission/exposure.

Man with HIV gets reprieve from deportation

On 4 November 1999, the Federal Court (Trial Division) lifted a "removal order" just hours before a man with AIDS was to be deported to El Salvador, his country of origin.

Reform MP proposes compulsory testing

In October 1999, a Reform Party Member of Parliament introduced Bill C-244 (the Blood Samples Act) in the House of Commons as a private member's bill. The bill proposes to permit forced blood testing of persons for HIV or hepatitis B or C where peace officers, firefighters, and other emergency services personnel or other health-care workers, may have been exposed to the risk of infection. It also proposes imprisonment for up to six months of any person who refuses court-ordered testing. In January 2000, the Canadian HIV/AIDS Legal Network wrote to the federal Minister of Justice, explaining why such legislation is unnecessary, unethical, contrary to existing law regarding "informed consent," and unconstitutional. On 21 March 2000, the Bill passed second reading unanimously. It now awaits committee hearings. This article sets out the concerns the Network raised about the proposal for compulsory HIV testing.

Recent court rulings on medical and non-medical marijuana

The last several months saw important victories but also disappointments in litigation over criminal prohibitions of marijuana in Canada. Four cases are summarized below--two deal with claims regarding medical marijuana, the other two with recreational use.

Criminal law and HIV/AIDS: update III

This regular column reviews new developments in the area of criminal prosecutions for HIV transmission or exposure, or developments that have come to our attention since the last issue of the Newsletter. Canadian developments are the focus. Cases and legislation from other jurisdictions are only included if they represent a significant development in this area of the law or for the jurisdiction in question.

Canada loses appeal of WTO panel ruling on minimum patent terms

In the last issue, we reported on a ruling of a Panel of the World Trade Organization (WTO) that Canada was in breach of the international Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement). The Panel found that Canada's Patent Act does not provide the minimum patent terms required by the trade agreement. Canada appealed that decision, but on 18 September 2000 the WTO Appellate Body upheld the Panel ruling.

Panel rules against Canada on patent terms for pre-TRIPS patents

On 5 May 2000, the WTO Panel issued another ruling regarding patents of relevance to pharmaceutical products. Upholding a complaint by the US, the Panel ruled that Canada's Patent Act was in breach of the minimum patent terms for inventions required by the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement).

Complaint against Argentina over protection of patents and test data

On 30 May 2000, the same day as the complaint against Brazil, the US (again joined by the EC) filed a complaint against Argentina, alleging that its patent laws violate the TRIPS Agreement in a number of ways.

Court approves final Red Cross bankruptcy plan to compensate blood victims

Following two years of negotiations, the insolvent Canadian Red Cross Society received court approval on 14 September 2000 of its plan to compensate victims of Canada's tainted blood tragedy (and pay other creditors).

Synovial osteochondromatosis presenting as a mass in the buttock

A 42-year-old woman, who had received a radiologic diagnosis of synovial osteochondromatosis many years before, was examined for a painful right hip and a large immobile mass in the right buttock. Findings of radiologic and scintigraphic imaging were consistent with synovial osteochondromatosis. The patient underwent arthrotomy and excision of the large mass and several smaller masses to control pain and to identify possible malignant change.