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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Pensions

Federal and provincial pension plans

Federal pension plans

There was no erroneous advice or administrative error

Pension recipient obtained Canada Pension Plan (CPP) disability benefits and Disabled Contributor’s Child Benefits (DCCB) in 1991 when he had three young children. Recipient had fourth child in 1993 but did not apply for benefits for this child until 2011. Recipient’s application for DCCB benefits for child was approved and he was provided with 11 months of retroactive DCCB benefits, which was maximum permitted under legislation. Recipient’s attempts to challenge this decision were unsuccessful. Delegate of Minister of Employment and Social Development Canada determined that no erroneous advice or administrative error had been made that resulted in denial of additional benefits. Second delegate made same determination. Recipient brought application for judicial review of delegate’s decision. Application dismissed. Delegate’s decision was not unreasonable. Recipient’s initial application kit clearly indicated that it was necessary to make written application for benefits for childre. Recipient’s complaint that he did not receive sufficient advice was not basis for relief under s. 66(4) of Canada Pension Plan. Recipient’s honest but mistaken understanding that he did not have to apply for benefits for youngest child did not entitle him to relief. There was no legal obligation on part of Employment and Social Development Canada to inform individuals of their entitlement to benefit or to remind recipients of their obligation to inform Department of any changes to status.
Consiglio v. Canada (Attorney General) (2016), 2016 CarswellNat 6262, 2016 FC 1123, Anne L. Mactavish J. (F.C.).

Remedies

Availability of injunctions

Allegations of inducement constituted serious issue

Plaintiffs were TV broadcasting companies and TV broadcast distribution undertakings while defendants were vendors of TV set-top boxes with pre-loaded applications. Plaintiffs learned that defendants’ devices could be used to access protected content produced and/or retransmitted by plaintiffs using online streaming websites, and that defendants advertised their products as way to access free television content and avoid cable bills. Plaintiffs brought unspecified action against defendants. Plaintiffs brought motion for interlocutory injunction essentially restraining defendants from engaging in conduct harmful to plaintiffs’ legitimate intellectual property interests. Motion granted. Plaintiffs demonstrated serious issue to be tried. Sections 2.4, 3, and 21 of Copyright Act gave plaintiffs exclusive rights to communicate their programs to public by telecommunication via television broadcast. Plaintiffs also had sole right to fix their communication signals and to reproduce any fixation thereof. Devices marketed, sold, and programmed by defendants enabled consumers to obtain unauthorized access to content for which plaintiffs owned copyright. This was not case where defendants merely served as conduit but rather deliberately encouraged consumers and potential clients to circumvent authorized ways of accessing content. Statutory defence provided in s. 2.4(1)(b) of Act did not apply to defendants who went above and beyond selling simple “means of telecommunication”. Allegations of inducement constituted serious issue since defendants marketed themselves to consumers specifically on basis that their “plug-and-play” set-top boxes made it easy to eliminate need for cable subscription. Plaintiffs also had strong prima facie case that devices sold by defendants were used to access content that might contravene s. 9(1)(c) of Radiocommunication Act.
Bell Canada v. 1326030 Ontario Inc. (2016), 2016 CarswellNat 4944, 2016 CarswellNat 4945, 2016 FC 612, Danièle Tremblay-Lamer J. (F.C.).


Industrial and Intellectual Property

Trademarks

Opposition Board rejected opposition to trademark application

Applicant opposed respondent’s trademark application. Trademarks Opposition Board rejected applicant’s opposition to trademark application by respondent. Board rejected assertion that respondent’s proposed mark was not distinctive. Applicant asserted that Board’s decision was unreasonable because evidence of multiple restaurants using marché or market as part of their name meant that mark could not reasonably be seen as distinctive. Applicant appealed. Application dismissed. Decision was justifiable, transparent, and intelligible, and fell within range of possible, acceptable outcomes that were defensible in respect of facts and law. Board’s decision was principally focused on whether applicant met its initial evidentiary burden to adduce sufficient admissible evidence from which it could reasonably be concluded that facts alleged to support each ground of opposition existed. It was open to and reasonable for Board to conclude that evidence offered by applicant was not sufficient to show that mark lacked distinctiveness such that it was incapable of functioning as source identifier for respondent’s services. Although Board interspersed its distinctiveness analysis with certain aspects of its descriptiveness analysis, it did not render its decision unreasonable when viewed as whole.
Richtree Market Restaurants Inc. v. Mövenpick Holding AG (Sep. 15, 2016, F.C., Keith M. Boswell J., T-1889-15) 270 A.C.W.S. (3d) 838.


Industrial and Intellectual Property

Patents

Owner was entitled to declaration that claims of patent were not invalid

Plaintiff patent owner BPA and licensee B Inc. owned patent for micronized, uncoated, and rapidly dissolving oral contraceptive pill with low hormone dose. Defendant generic drug companies C Co. and A Inc. sold oral contraceptive pills with similar characteristics. Owner brought action for declaration of infringement by C Co. and A Inc. and related relief. C Co. and A Inc. brought counterclaims for declarations that claims were invalid. Action allowed; counterclaims dismissed. Claims were valid and infringed by C Co. and A Inc.. Owner was entitled to declaration that three claims of patent were not invalid based on grounds of obviousness, anticipation, overbreadth, insufficiency or ambiguity of specification, or inutility. Owner was entitled to declaration that three claims of patent had been infringed, either directly or by inducing infringement, by A Inc. and C Co.’s sale, importation, offering for sale and manufacture of their oral contraceptive pills. Owner was entitled to order enjoining A Inc. and C Co. from manufacturing, using, and selling oral contraceptive tablets that infringed claims. Owner was entitled to order directing A Inc. and C Co. to deliver up or destroy under oath, all articles that would offend injunction. Issue of damages or accounting of profits was to be heard in second phase of trial.
Bayer Inc. v. Cobalt Pharmaceuticals Co. (Sep. 7, 2016, F.C., Simon Fothergill J., T-1379-13, T-1468-13, T-1368-14) 270 A.C.W.S. (3d) 837.


Aboriginal Peoples

Bands

First Nation was not denied procedural fairness by Tribunal’s determination

Complainant filed complaint under s. 7 and s. 10 of Canadian Human Rights Act. Canadian Human Rights Tribunal decision upheld complainant’s claim that First Nation denied her employment in its fishery over several years because she was woman and, excluded her from captaining fishing vessel based on her marital status because First Nation had dispute with her husband following his captaincy of vessel in 2007. First Nation’s practice was to deprive women of employment opportunities in fishery. First Nation sought order setting aside Tribunal’s decision and order setting aside portion of Tribunal’s decision in which it found that two of complainant’s complaints of retaliation were substantiated. First Nation brought applications for judicial review of Tribunal’s decision in discrimination decision and retaliation decision. Applications dismissed. Tribunal’s decisions were justifiable, transparent, and intelligible. First Nation was not denied procedural fairness by Tribunal’s determination to render decisions. Tribunal simply released one set of reasons on discrimination complaint and second set on retaliation complaint. Although this manner of proceeding was not best practice, because it could possibly prevent parties from negotiating remedy for complain because they might need entire outcome of matter determined before they could do so, but this was not case here because Tribunal explicitly retained jurisdiction over two complaints. Tribunal was at liberty to follow its own procedure to yield just and expeditious outcome with respect to each complaint following hearing, and it did so fairly. First Band’s alleged errors was nothing more than request for Court to reweigh and reassess evidence and outcomes before Tribunal.
Millbrook First Nation v. Tabor (Aug. 3, 2016, F.C., Keith M. Boswell J., T-887-15, T-1379-15) 270 A.C.W.S. (3d) 451.


Industrial and Intellectual Property

Copyright

Applicant was entitled to statutory damages under Copyright Act (Can.)

Parties had settled prior instances where respondent infringed applicant corporation’s copyright in numerous computer programs, and injunction had been granted. Private investigator retained by corporation attended store where respondent offered to sell refurbished computer that included Windows 7 operating system, and he installed Microsoft Office, but no licence or DVD was provided for operating system or software. Private investigator attended store again and purchased refurbished computer with Windows 7 operating system and Microsoft Office, but he dealt with someone other than respondent. Corporation applied for relief, including damages for selling unlicenced copies of its programs. Application granted in part. Evidence established that respondent sold unlicenced copies of corporation’s programs on one occasion and infringed corporation’s copyright. Corporation was entitled to statutory damages under Copyright Act (Can.). Corporation was not awarded statutory maximum because conduct of respondent was not egregious, copyrights were only infringed on one occasion and awarding statutory maximum would amount to damages of $100,000, which was out of proportion to any profit made. Respondent failed to abide by terms of prior settlement agreements and with terms of prior injunction, and there is clear and compelling need to deter respondent from future infringing activities. Respondent was ordered to pay statutory damages of $10,000 for each infringement of corporation’s computer programs that were unlawfully copied and distributed, for total of $50,000. Punitive and exemplary damages were warranted based on respondent’s misconduct, need for denunciation and to deter him from any future infringement of corporation’s copyright in its computer programs. In circumstances, respondent was ordered to pay punitive and exemplary damages of $50,000.
Microsoft Corp. v. Liu (Aug. 19, 2016, F.C., Keith M. Boswell J., T-797-15) 270 A.C.W.S. (3d) 179.
Trade marks
There was no cause to reduce compensatory and punitive awards
Court accepted plaintiffs’ uncontradicted evidence with respect to four instances where counterfeit Chanel merchandise was offered for sale or sold in conventional retail store. Plaintiffs obtained judgment against LCK and 694. Plaintiffs’ action against SL was dismissed. Court granted declaratory relief confirming validity and ownership of Chanel trademarks; injunctive relief precluding defendants from continuing their infringing activities, and injunctive relief requiring delivery up and destruction of remaining infringing goods. SL’s appeal was allowed on limited grounds that there was ambiguity concerning SL’s involvement in one of instances. Summary trial motion was directed to be remitted to trial judge for redetermination in accordance with reasons. Court was to resolve ambiguity with respect to SL’s involvement in one of instances of infringement and re-determine quantum of damages. Findings, declarations, orders and condemnations made against corporate defendants and SL including compensatory damages award, punitive damages award and costs award were confirmed and remained unchanged. SL was jointly and severally liable with corporate defendants for infringement. In all respects and at all relevant times SL was personally liable of infringing activities that took place in business or at premises on all four instances. At all relevant times SL was controlling mind of corporate defendants. Corporate changes did not affect SL’s personal liability. SL continued to use property as her own and continued to control business. Motivation behind corporate changes and transfer of ownership alleged by SL was highly questionable and they were fraudulent. There were ample evidentiary base and compelling legal reasons to find SL personally liable of all four instances of infringement. There was no cause to reduce compensatory and punitive awards.
Chanel S. de R.L. v. Lam Chan Kee Co. (Aug. 30, 2016, F.C., Luc Martineau J., T-653-13) 270 A.C.W.S. (3d) 181.


Industrial and Intellectual Property

Copyright

Copyright holders had right to have identity of subscriber revealed and disclosed

Copyright holders claimed that internet users had engaged in file sharing over internet, and thereby infringed copyright holders’ copyrights in several films. Applicants initiated proposed class proceeding claiming, amongst other things, declaratory and injunctive relief against subscriber of internet service provider (ISP), whose identity was presently unknown to them. Copyright holders brought motion for order compelling ISP to disclose any and all contact and personal information of subscriber associated with identified internet protocol address at various times and dates. Motion granted. Copyright holders adduced sufficient evidence to show that they had bona fide claim that unknown persons were infringing copyright in their films. Consequently, copyright holders had right to have identity of subscriber revealed and disclosed for purpose of pursuing their proposed class proceeding. Copyright holders were only entitled to disclosure by ISP of subscriber’s name and address as recorded in ISP’s records. Release of information was to remain confidential and not be disclosed to any other parties without further court order and could only be used by copyright holders in connection with their proposed class proceeding. ISP was entitled to payment of $100 per hour to assemble information and costs fixed at $500.
Voltage Pictures, LLC v. John Doe No. 1 (Jul. 28, 2016, F.C., Keith M. Boswell J., T-662-16) 269 A.C.W.S. (3d) 648.


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