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Industrial and Intellectual Property

TRADEMARKS

Word “Fusion” was fairly common and suggestive dictionary word

D Ltd. was flooring company that registered trademarks FUSION FORCE and FUSION PATCH in association with adhesives for flooring. D Ltd. also claimed use of several common law trademarks containing word “Fusion” in association with adhesives and grout for flooring. C Ltd. specialized in tile and stone installation. Less than one month after D Ltd. registered its trademarks, C Ltd. registered four FUSION PRO trademarks, three of which had design. C Ltd.’s trademarks were registered in association with grout for flooring. D Ltd. brought application for order expunging C Ltd.’s trademarks from register on basis of likelihood of confusion. Application dismissed. None of C Ltd.’s trademarks were likely to be confusing with D Ltd.’s registered or common law trademarks. D Ltd.’s trademarks did not have inherent distinctiveness. Word “Fusion” was fairly common and suggestive dictionary word. Other entities used word “Fusion” in flooring business in Canada. Evidence of acquired distinctiveness was at best very thin. Use of registered trademarks by two affiliates could not be considered under s. 50(1) of Trademarks Act due to lack of evidence of licensing arrangements or D Ltd.’s control over character or quality of goods using trademarks. Common control between companies through parent company was insufficient to demonstrate control. Such uncontrolled use of “Fusion” trademarks by D Ltd.’s affiliates arguably diminished trademarks’ alleged distinctiveness. C Ltd.’s trademarks were inherently stronger than D Ltd.’s since grout had no adhesive or “joining” properties suggested by word “Fusion”. C Ltd. also had strong sales and engaged in advertising. Parties’ wares were not essentially and primarily same. D Ltd. had not used its trademarks in association with grout. Parties did not primarily target same types of customers and did not operate at same trade level.
Distribution Prosol PS Ltd. v. Custom Building Products Ltd. (Oct. 15, 2015, F.C., Denis Gascon J., File No. T-874-14) 260 A.C.W.S. (3d) 349.

Civil Procedure

CLASS ACTIONS

Action for breach of fiduciary duties and treaty obligations was not certified

Between 1871 and 1921 Canada negotiated 11 treaties with various First Nations. Treaties provided Canada with large tracts of land in exchange for promises made to First Nations. Canada agreed to pay annual annuity to each member of Treaty Bands. In 1875 amount of annuity payments in first two treaties was increased from $3 per person to $5 per person. Plaintiffs alleged that Canada had not adjusted amount of annuity payments in any of treaties since that time and, as result, annuity payments had been reduced in value to point that they no longer contributed to welfare of individual recipients. Plaintiffs claimed that provisions in treaties that provided for annuity payments entitled recipients to amount that was to be annually adjusted to reflect inflation and changes in purchasing power in order to maintain value that was equal to its buying power at time treaty was made. Plaintiffs claimed Canada was in breach of obligations under treaties and its fiduciary duties and sought damages and compensation in amount equal to present value of losses sustained by individual beneficiaries as result of Canada’s failure to adjust annuity payments over time. Plaintiffs brought motion to certify action as class proceeding. Motion dismissed. Plaintiffs pleaded two causes of action, breach of treaty obligations and breach of fiduciary duty. It was not plain and obvious that plaintiffs had no standing such that claim could not succeed as class action. It was not plain and obvious that pleadings did not disclose reasonable cause of action for breach of treaty if it was intention of parties at time treaties were signed that annuity would provide certain level of comfort to Indians and adjustment clause was not negotiated because parties did not foresee that purchasing power of annuity might be significantly eroded. It was not plain and obvious that pleadings did not disclose reasonable cause of action for breach of fiduciary duty to beneficiaries of annuity payments. Pleadings disclosed reasonable cause of action. There was identifiable class of two or more persons. However, plaintiffs failed to establish that there were common issues or facts that related to all individual members of proposed class, given differences in treaties. Treaty interpretation was fact driven and must be done on treaty-by-treaty basis. Representative action might be more appropriate procedure. Neither plaintiff was appropriate representative.
Horse Lake First Nation v. R. (Oct. 15, 2015, F.C., Russel W. Zinn J., File No. T-1784-12) 260 A.C.W.S. (3d) 221.

Immigration

Refugee status

Minister’s position would work against clearly stated policy of family unity

Foreign national was citizen of Iran who became permanent resident of Canada upon her arrival in country on June 13, 2006. Foreign national was dependent of her husband, who was determined to be Convention refugee by visa officer overseas as he had well-founded fear of persecution based on political opinion. Under policy of family unity, foreign national, her husband, and their son became members of Convention Refugees Abroad class and were accepted without assessment. Foreign national returned to Iran on two occasions and minister sought cessation of her Convention refugee status on basis of s. 108(1)(a) of Immigration and Refugee Protection Act for voluntarily re-availing herself of protection of Iran. Refugee Protection Division panel concluded that it did not have jurisdiction to consider minister’s application to cessate refugee status of respondent pursuant to s. 108 of protection act because panel found that foreign national was not Convention refugee as contemplated in s. 95(1)(a) of act. Minister applied for judicial review on threshold jurisdiction issue of whether phrase “has been determined to be Convention refugee” in s. 95(1)(a) of act applied to foreign national as only then would RPD have jurisdiction to cessate her refugee status under s. 108(1) of act. Minister contended that foreign national was deemed to have been so determined by virtue of her acceptance in Convention Refugee Abroad class. Application dismissed. Chapter 10.2 of Citizenship and Immigration Canada processing manual OP 5 states that family members accompanying principal applicant who has been determined to be Convention refugee “derive their refugee status” from principal applicant. However, OP 5 does not have force of law and merely suggests that foreign national has refugee status, and does not say she “has been determined to be Convention refugee” as required by s. 95(1)(a) of act. It would be nonsensical to consider change to foreign national’s status in Canada simply because she visited a country in which her husband was found to be in danger, but in which she never claimed to be in danger. If foreign national’s refugee status were cessated, she would face loss of her permanent resident status under s. 46(1)(c.1) of act with all of the consequences that could have on her and her family. Applicable statutory and regulatory provisions would have to be clearer in order for minister’s position to prevail. Minister’s position would work against clearly stated policy of family unity.
Canada (Minister of Citizenship and Immigration) v. Esfand (Oct. 21, 2015, F.C., George R. Locke J., File No. IMM-1133-15) 259 A.C.W.S. (3d) 738.

Industrial and Intellectual Property

PUBLIC HEALTH

Minister implemented import ban motivated by improper purpose

Main applicant was largest pharmaceutical manufacturer in Canada and it purchased and imported into Canada active pharmaceutical ingredients and finished dosage form pharmaceutical products from other applicants, affiliated Indian companies. United States Food and Drug Administration inspected Indian applicants’ facilities and found they were non-compliant with good manufacturing practices requirements and it issued import alert on all products coming from Indian applicants except for products that were medically necessary. Newspaper began publishing articles and editorials that were critical of Health Canada and respondent Minister of Health. Minister imposed import ban preventing importation of drug products into Canada from Indian applicants’ manufacturing facilities and it also amended main applicant’s establishment licences to prohibit import of all products except those deemed medically necessary. Applicants applied for judicial review. Application granted. Minister acted for improper purpose and did not act in accordance with duty of procedural fairness when import ban was implemented and establishment licences were amended. There was no evidence that minister was concerned with immediate health risks posed by products subject to ban or that situation was highly urgent such that level of procedural fairness should be less. Regulatory regime and circumstances suggested that procedural fairness should have been given prior to import ban being implemented. Minister failed to provide any notice and denied main applicant opportunity to be heard before unilaterally imposing import ban. Minister did not act in accordance with natural justice. Applicants had not met burden of proving that minister demonstrated reasonable apprehension of bias from lack of independence or impartiality. Minister’s actions were ultra vires. Minister used proper statutory provision to add terms and conditions to main applicant’s establishment licences but in circumstances provision should include procedural fairness granted to establishment licence holders throughout rest of regulatory scheme, which required notice and reasons for addition of terms and conditions. Section 2(e) of Canadian Bill of Rights did not apply in circumstances. As minister implemented import ban that was motivated by improper purpose and without providing main applicant with procedural protections required by law, decision was not reasonable or correct and it must be quashed. Minister acted without jurisdiction in releasing statements to media and statements were to be retracted.
Apotex Inc. v. Canada (Minister of Health) (Oct. 14, 2015, F.C., M.D. Manson J., File No. T-2223-14) 259 A.C.W.S. (3d) 580.


Human Rights Legislation

HUMAN RIGHTS COMMISSION/TRIBUNAL

Tribunal had no jurisdiction to consider settlement between parties

In 2003, employee filed complaint with Canadian Human Rights Commission arguing Canadian International Development Agency’s practices regarding employment and harassment in workplace were discriminatory and violated s. 7 of Canadian Human Rights Act. In 2006, settlement occurred and hearing before tribunal was postponed indefinitely. In early 2007, commission sent letter to tribunal indicating that terms of settlement had been approved by commission pursuant to s. 48(1) of act. Tribunal then informed parties that file was closed. In 2010, commission applied to tribunal to start new mediation process as parties disagreed on interpretation to be given to settlement. In 2012, decision rendered by Federal Court held settlement was deemed to be order of Federal Court. Employee unsuccessfully brought motion before tribunal requesting that file be re-opened. Employee brought application for judicial review. Application dismissed. There was no jurisdiction. Employee wished to resolve ambiguity in settlement by statutory tribunal which was not party to settlement approved by commission, and was not party to order. Tribunal was statutory creature that had no jurisdiction to consider settlement between parties as administrative tribunal had no inherent jurisdiction, taking its existence and jurisdiction from act.
Rameau c. Canada (Procureur général) (Oct. 19, 2015, F.C., Yvan Roy J., File No. T-1992-14) 259 A.C.W.S. (3d) 534.


Aboriginal Peoples

CROWN RELATIONSHIP

Judicial review not appropriate course of action to determine whether treaty rights infringed

Respondent BC Hydro submitted project description, which initiated environmental assessment processes. Project was proposed dam and 1,100-megawatt generating station on Peace River, which would flood Peace River Valley if constructed. Joint review panel of British Columbia and federal governments and Minister of Environment determined that significant adverse environmental effects would likely result from construction of project. Governor in Council (GIC) decided that adverse environmental effects were justified in circumstances. Applicants were British Columbia Treaty 8 First Nations whose members exercised constitutionally protected treaty rights within project and surrounding area. First Nations applied for judicial review of GIC’s decision. Application dismissed. Decision of GIC was afforded considerable deference. Judicial review was not appropriate course of action to determine whether treaty rights had been infringed. Evidentiary record that was developed for an action was appropriate basis for court to determine issue of infringement of First Nations’ treaty rights. Infringement of important and fundamental treaty rights required complete evidentiary record to be fairly and reasonably determined. First Nations failed to establish that they had legitimate expectation that GIC would deal with issue of treaty infringement. Crown did not need to determine infringement of First Nations’ treaty rights but they did consider those rights. From beginning of environmental assessment process to its conclusion steps were built into process to ensure that decision-makers were provided with information they reasonably required to make decisions. BC Hydro consulted with First Nations extensively and in good faith. Duty to consult and accommodate First Nations was met and GIC’s decision was reasonable.
Prophet River First Nation v. Canada (Attorney General) (Aug. 28, 2015, F.C., Michael D. Manson J., File No. T-2292-14) 258 A.C.W.S. (3d) 651.

Employment

PUBLIC SERVICE

Commission’s denial of permission for prosecutor to seek nomination in federal election was upheld on appeal

Applicant’s request for permission and leave of absence to seek nomination in federal election denied by Public Service Commission. Applicant was prosecutor in Regulatory and Economic Prosecutions and Management Branch of Public Prosecution Service of Canada. Applicant’s supervisor claimed no concern if applicant returned to work if not elected but Director of Public Prosecution (DPP) had concerns about impairment or perceived impairment of applicant’s ability to perform duties both before election and upon her return to work. DPP claimed that partisan political activities by prosecutors undermine prosecutorial function. Commission not satisfied that being candidate would not impair or be perceived as impairing applicant’s ability to perform duties in politically impartial manner. Applicant’s appeal dismissed. Charter rights engaged were right to run for office, freedom of expression and freedom of association. Issue was whether Commission’s decision reflected proportionate balancing of Charter rights in light of statutory objectives. Commission’s decision did not amount to blanket prohibition on all federal prosecutors but based on consideration of applicant’s specific duties. DPP clearly expressed view that political involvement not appropriate for federal prosecutors. Implicit in scheme of Public Service Employment Act that right to engage in political activity may have to give way to objective of ensuring employees perform duties in politically impartial manner. PSEA requires commission to recognize and balance employee’s right to engage in political activities and objective of maintaining principle of political impartiality in public service. Although commission did not identify rights at stake as Charter rights, decision and process reflected that commission considered all submissions and impact of refusal which would limit applicant’s rights. Commission understood factual context, recognizing that applicant had authority to exercise significant discretion relative to other public servants. Commission properly viewed exercise of discretion in context of government employees and reasonably found that applicant would have increased visibility as result of seeking candidacy. Commission entitled to attach more weight to submissions of DPP but considered other information. Commission concluded that no measures could address risk to political partiality or perception of political partiality. Commission’s decision reflected proportionate balancing and was reasonable.
Taman v. Canada (Attorney General) (Oct. 13, 2015, F.C., Catherine M. Kane J., File No. T-60-15) 258 A.C.W.S. (3d) 327.
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