Deflating the Michelin Man: - Irwin Law Inc.
Deflating the Michelin Man: - Irwin Law Inc.
Deflating the Michelin Man: - Irwin Law Inc.
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Chapter Five • <strong>Deflating</strong> <strong>the</strong> <strong>Michelin</strong> <strong>Man</strong> 151<br />
arguably demand greater scrutiny. e emphasis in Théberge on users’<br />
rights and <strong>the</strong> related importance of access to and use of o<strong>the</strong>rs’ expression<br />
in <strong>the</strong> innovation process, could well be used to suggest <strong>the</strong> user rights<br />
articulated in <strong>the</strong> Act are under-inclusive. To <strong>the</strong> extent, for example, that<br />
fair dealing 0 does not include copying for expression that is as socially<br />
and politically important as whistle blowing and parody, <strong>the</strong> Act may well<br />
restrict more expression than is reasonably necessary.<br />
Fur<strong>the</strong>r, <strong>the</strong> SCC’s subsequent decision in Dunmore 2 casts doubt on<br />
<strong>Michelin</strong>’s conclusion that courts should defer to Parliament in analysing<br />
<strong>the</strong> constitutionality of <strong>the</strong> Act. In Dunmore, <strong>the</strong> SCC did not defer to <strong>the</strong><br />
Ontario legislature in its repeal of a legislation that had permitted agricultural<br />
workers to organize collectively. Bastarache J. stated:<br />
Given <strong>the</strong> delicate balance between interests that is required here,<br />
as well as <strong>the</strong> added complexity of protecting <strong>the</strong> character of <strong>the</strong><br />
family farm, one might be tempted to conclude that a wide margin<br />
of deference is owed to <strong>the</strong> enacting legislature when applying<br />
<strong>the</strong> minimum impairment test …. However, as outlined in Thomson<br />
Newspapers, political complexity is not <strong>the</strong> deciding factor in establishing<br />
a margin of deference under s. . Ra<strong>the</strong>r, <strong>the</strong> margin will vary<br />
according to whe<strong>the</strong>r legislature has ( ) sought a balance between<br />
<strong>the</strong> interests of competing groups, (2) defended a vulnerable group<br />
with a subjective apprehension of harm, (3) chosen a remedy whose<br />
effectiveness cannot be measured scientifically, and (4) suppressed<br />
an activity whose social or moral value is relatively low. 3<br />
Contrary to <strong>the</strong> FCTd’s conclusions in <strong>Michelin</strong>, it is by no means obvious<br />
that a Canadian court should defer to Parliament, ei<strong>the</strong>r in relation<br />
to <strong>the</strong> current Act or to <strong>the</strong> proposed TPM-related amendments.<br />
0 See <strong>the</strong> Act, above note .<br />
Fewer, above note . As Sachs J. wrote in dismissing an infringement claim<br />
relating to <strong>the</strong> parodic use of a trademark: “humour is one of <strong>the</strong> great solvents<br />
of democracy. It permits <strong>the</strong> ambiguities and contradictions of public life<br />
to be articulated in non-violent forms. It promotes diversity. … it is an elixir<br />
of constitutional health”: Laugh It Off Promotions CC v. South African Breweries<br />
International (Finance) BV (2 May 2005) Constitutional Court of South Africa,<br />
at 64<br />
Laugh It Off.<br />
2 Dunmore v. Ontario (Attorney General), 200 SCC 4, , 200 3 S.C.R. 0 6.<br />
3 Ibid. at 0 – 2.