e. Definition of Residing in Canada The Patent Act, the Industrial Design Act, the Trade-marks Act, and the Copyright Act do not provide a definition for what constitutes “resident” or “ordinarily resident.” However, case law from the Federal Court of Canada, has defined “ordinarily resident” as “distinct and separate from the notion of “citizenship”, “domicile” or “permanent residence” in that it essentially calls for a determination of the country where a person’s general mode of life unfolds.”146 In particular, “[i]t is held to mean residence in the course of the customary mode of life of the person concerned and it is contrasted with special or occasional or casual residence. The general mode of life is, therefore, relevant to its application.”147 In this sense, without any statutory or policy directive from Canadian authorities, “ordinarily resident” appears to be similar to the definition of “habitual residence” envisioned by the drafters of the 1954 Convention. III. Assessment Based on a review of the Canadian legal framework, it appears that stateless persons in Canada are able to exercise their rights in Canada in accordance with Article 14. This is because Canadian legislation does not require a foreign national to have a nationality, Canadian citizenship, Canadian permanent residence, or a particular immigration status in Canada. Moreover, where residence or “ordinarily resident” is a requirement, the definition of “ordinarily resident” in Canadian case law appears consistent with the definition of habitual residence envisioned by Article 14. Overall, the Canadian legal framework appears to be compatible with Article 14 of the 1954 Convention. As a final note, even if there is a gap in the Canadian legal framework with respect to Article 14 of the 1954 Convention, there is limited protection of such rights under international human rights law. For example, Article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) provides that everyone has a right “to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” However, the Committee on Economic, Social and Cultural Rights (“CESCR”) states: “the scope of protection of the moral and material interests of the author provided for by article 15, paragraph 1 (c), does not necessarily coincide with what is referred to as intellectual property rights under national legislation or international agreements…It is therefore important not to equate intellectual property rights with the human right recognized in article 15, paragraph 1 (c).”148 Fraser v. Janes Family Foods Ltd., 2012 FCA 99, at para. 9, available at: http://canlii.ca/t/fqsbb. Thomson v. Minister of National Revenue, [1946] S.C.R. 209 at p. 224, available at: http://canlii.ca/t/1nmzk [Thomson], cited in ibid., at para. 9. 148 See UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of Which He or She is the Author (Art. 15, Para. 1 (c) of the Covenant), 12 January 2006, E/C.12/GC/17, at paras. 2-3, available at: http://www.refworld.org/docid/441543594.html. 146 147 31 31