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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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Industrial and Intellectual Property

Trademarks

Consumer would likely be confused as to whether respondent’s trademark originated from same source as applicant’s trademark

Respondent filed applications for trademarks BENJAMIN MOORE NATURA and BENJAMIN MOORE NATURA & Design based on proposed use in Canada in association with interior and exterior paints. Applicant sold paint with BEAUTI-TONE NATURAL trademark and filed statements of opposition. Trademarks Opposition Board rejected applicant’s oppositions. Board rejected applicant’s argument that respondent failed to comply with Trade-marks Act (Can.) and found that respondent’s marks were distinctive and would not cause confusion. Applicant appealed. Appeal allowed. Applicant adduced new evidence that would have materially affected decision. New evidence was considered de novo. New evidence established that respondent learned that applicant had prior rights in NATURA and responded by applying for trademarks BENJAMIN MOORE NATURA and BENJAMIN MOORE NATURA & Design but did not establish non-compliance with s. 30(e) or (i) of act. There were insufficient grounds to conclude that respondent did not intend to use applied for marks in Canada at time of filing. In considering whether there was likelihood of confusion, distinctiveness factor slightly favoured applicant; length of use factor slightly favoured applicant; nature of wares factor favoured applicant; there was some overlap in channels of trade; degree of resemblance factor favoured applicant; and family of trademarks argument supported position of applicant. Ordinary consumer would likely be confused as to whether parties’ trad-marks originated from same source, particularly marks used in association with paint. As matter of first impression, casual consumer somewhat in hurry who encountered BENJAMIN MOORE NATURA paint, when consumer had no more than imperfect recollection of applicant’s BEAUTI-TONE NATURA paint, would likely be confused as to source of wares, at least at later material date when applicant’s NATURA brand had acquired particular distinctiveness in respect of paint. Consumer would likely be confused as to whether respondent’s trademark originated from same source as applicant’s trademark. Board’s decision was set aside and respondent’s trademark applications were refused.
Home Hardware Stores Ltd. v. Benjamin Moore & Co. (Dec. 4, 2015, F.C., Robin Camp J., T-2441-14) 262 A.C.W.S. (3d) 718.


Administrative Law

Freedom of information

Parts of discussion paper were subject to solicitor and client privilege

In 2006, Service Canada received access to information request from lawyer with Nova Scotia Legal Aid seeking variety of records related to Canada Pension Plan credit splitting. Request was transferred to Employment and Social Development Canada (ESDC). ESDC respondent to request but decided to exclude discussion paper from record on grounds that solicitor-client privilege exempted document pursuant to s. 23 of Access to Information Act (Can.). In 2008, lawyer complained to Office of Information Commissioner of Canada (OIC) about exemptions to his request. Discussions between OIC and ESDC led to disclosure of parts of discussion paper in 2014. ESDC maintained solicitor and client privilege over remaining parts of discussion paper. Lawyer authorized OIC to proceed with application for judicial review. At hearing, ESDC admitted that discussion paper had not been prepared by legal advisor. Application allowed in part. After reviewing discussion paper, court found that three parts remained subject to solicitor and client privilege. One of those parts contained policy advice stemming from legal opinions received by ESDC. Parties agreed that another part containing headnote should not be disclosed. Third part contained two sentences giving details about questions which were submitted to legal counsel and were privilege. Balance of discussion paper was to be disclosed.
Canada (Information Commissioner) v. Canada (Minister of Employment and Social Development) (Jan. 12, 2016, F.C., Michel Beaudry J., T-840-15) 262 A.C.W.S. (3d) 552.


Industrial and Intellectual Property

Trademarks

Plaintiff’s trademarks had little inherent distinctiveness and were afforded narrow ambit of protection

Parties were commercial program providers. Plaintiff approached defendant to propose vendor relationship which defendant declined. Email exchanges between parties revealed to defendant WORKPERKS and ADPERKS marks, plaintiff’s system for managing discount programs, and plaintiff’s customer employee groups and association/member-based groups and corresponding number of end-users. Plaintiff claimed information was confidential, which defendant disputed. Plaintiff claimed defendant infringed its rights in family of registered trademarks endings in “PERKS” (VI trademarks) by using registered trademark “PERKOPOLIS.” Plaintiff asserted defendants made false and misleading statements discrediting plaintiff’s business, committed tort of passing off, and depreciated their goodwill. Action dismissed. Claim that defendants disseminated false and misleading statements regarding plaintiff’s business and services tending to discredit plaintiff was dismissed. Evidence did not show statements made by corporate defendant with respect to deficiencies in plaintiff’s infrastructure to provide customer support or concerning insufficient privacy and security of personal information. There was no evidence of any connection of misleading or false statements made by defendants to potential or actual customers of plaintiff in relation to parties’ trademarks in issue. Claim in relation to depreciation of goodwill was dismissed. Plaintiff acknowledged that only alleged use by defendants of any of plaintiff’s trademarks was use of “Member Perks” on web site, which use was not use as trademark for purpose of distinguishing defendant’s wares or services from others, and could not constitute basis for valid claim with respect to depreciation of goodwill. Speculative nature of plaintiff’s evidence of damages was insufficient to support valid of passing off. There was no likelihood of deception through misrepresentation. There was little resemblance in either appearance or sound or in idea suggested by marks. Each of plaintiff’s trademarks was combination of particular class of end users and word perks. Defendant’s use of “perk” suggested type of benefit program but had little obvious suggestion as to whom or for what perks were offered and did not suggest any of ideas associated with plaintiff’s trademarks. Plaintiff’s trademarks had little inherent distinctiveness and were afforded narrow ambit of protection. Evidence of confusion was insufficient to establish that casual customer somewhat in hurry would confuse marks.
Venngo Inc. v. Concierge Connection Inc. (Dec. 3, 2015, F.C., Michael D. Manson J., T-467-11) 262 A.C.W.S. (3d) 465.


Immigration

Visitors

Question was certified with respect to application for extension of temporary residence permit

Foreign nationals were French citizens in Canada on temporary resident permits which expired July 15, 2014. On June 16, 2014 foreign nationals applied for extension of time however application forms and documents were returned to them because they had failed to make sufficient payment and to provide other required documents. Citizenship and Immigration Canada’s covering letter to foreign nationals indicated that their request could not be dealt with unless they returned copy of letter, together with new complete application in proper form accompanied by correct fee and other required documents. On August 25, 2014, foreign nationals purported to comply, however their application forms were again sent back with same form covering letter indicating that certain information was still missing. On April 21, 2015 foreign nationals resubmitted everything and had yet to receive reply. On July 4, 2015, minister’s delegate signed exclusion order pursuant to s. 44(2) of Immigration and Refugee Protection Act (Can.) on grounds that foreign nationals had violated s. 29(2) of Act by failing to leave Canada at expiry of their temporary resident permits. Foreign nationals applied for judicial review, contending that exclusion order was invalid because they had applied for extension of their permits before they had expired, so that they maintained Canadian status under Regulations until their applications were refused on merits. Application dismissed. Decision of minister’s delegate to issue exclusion order was both reasonable and correct. Application within meaning of s. 183 of Immigration and Refugee Protection Regulations (Can.) must be such that decision maker is able to grant extension, or to reject it, on merits. Officer could not have made positive decision on application form submitted before temporary resident permits expired because applications were incomplete. Therefore, foreign nationals were required to depart Canada under s. 183(1) of Regulations and s. 29 of Act. Question certified: When temporary resident has applied for extension of period authorized for his or her stay, but application is returned to applicant, due to incompleteness, in accordance with s. 12 of Regulations, does applicant benefit from implied status until he or she actually submits complete application and that application is either refused or allowed?.
Stanabady v. Canada (Minister of Citizenship and Immigration) (Dec. 11, 2015, F.C., Sean Harrington J., IMM-2838-15, IMM-2840-15) 262 A.C.W.S. (3d) 194.


Aboriginal Peoples

Status

Record too sparse to conclude that First Nation fell within definition of ‘Band’ in Indian Act (Can.)

Delegate of Minister of Aboriginal Affairs and Northern Development Canada refused applicant First Nation’s request for $5,000 to be paid to it from trust money held by Government of Canada. Funds were sought to assist First Nation in paying for research to be used in negotiations with Department of Fisheries and Oceans. Refusal was based on fact that First Nation was not recognized Band pursuant to Indian Act (Can.). First Nation applied for judicial review of minister’s delegate’s decision. Application dismissed. In order to make declaration that applicant sought, namely that Minister of Indian Affairs and Northern Development held funds for its benefit, court would first have to find that First Nation was entitled to claim money on basis that land in New Brunswick that was set aside as reserve land in 1881 was set aside for Passamaquoddy people. Court would then have to find that members of First Nation were successors to Passamaquoddy people for whom reserve was created. Effect of such findings would be that First Nation would then come within definition of Band in s. 2 of Act, and would be entitled to social programs and other benefits. However, record before court was far too sparse to make findings First Nation sought. Delegate’s decision was not incorrect or unreasonable, based on limited record before him when decision was made. Delegate did not apply wrong standard of proof in rejecting First Nation’s request for fund.
Schoodic Band v. Canada (Attorney General) (Dec. 21, 2015, F.C., Anne L. Mactavish J., T-1183-14) 262 A.C.W.S. (3d) 4.


Injunctions

INTERLOCUTORY RELIEF

Expanding scope of injunction order would disrupt balance of convenience analysis

Action challenged constitutionality of Marihuana for Medical Purposes Regulations. Plaintiffs were granted interlocutory injunction that had very specific terms designed to balance number of competing interests. Plaintiffs wanted to change dates set out in injunction order and to change class of persons covered by order and extend order to wider group of former Marihuana Medical Access Regulations holders. Plaintiffs brought motion to vary injunction. Motion dismissed. Matters raised on motion were not truly new. Motion was premature. To accept plaintiffs’ characterization of evidence, its weight and significance would require court to make critical determinations in advance of decision on underlying Canadian Charter of Rights and Freedoms challenge. It was not appropriate for court to engage in piecemeal and premature consideration of aspects of its final judgment. Court should not alter carefully crafted interlocutory injunction order by expanding its terms. Expanding scope of injunction order would disrupt balance of convenience analysis. Relief sought extended past decision date of Charter challenge. Interlocutory orders were designed to expire when final decision in litigation was made.
Allard v. Canada (Jul. 15, 2015, F.C., Michael L. Phelan J., File No. T-2030-13) 261 A.C.W.S. (3d) 708.


Injunctions

INTERLOCUTORY RELIEF

Expanding scope of injunction order would disrupt balance of convenience analysis

Action challenged constitutionality of Marihuana for Medical Purposes Regulations. Plaintiffs were granted interlocutory injunction that had very specific terms designed to balance number of competing interests. Plaintiffs wanted to change dates set out in injunction order and to change class of persons covered by order and extend order to wider group of former Marihuana Medical Access Regulations holders. Plaintiffs brought motion to vary injunction. Motion dismissed. Matters raised on motion were not truly new. Motion was premature. To accept plaintiffs’ characterization of evidence, its weight and significance would require court to make critical determinations in advance of decision on underlying Canadian Charter of Rights and Freedoms challenge. It was not appropriate for court to engage in piecemeal and premature consideration of aspects of its final judgment. Court should not alter carefully crafted interlocutory injunction order by expanding its terms. Expanding scope of injunction order would disrupt balance of convenience analysis. Relief sought extended past decision date of Charter challenge. Interlocutory orders were designed to expire when final decision in litigation was made.
Allard v. Canada (Jul. 15, 2015, F.C., Michael L. Phelan J., File No. T-2030-13) 261 A.C.W.S. (3d) 708.


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