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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.).


Administration and enforcement

Validity of tax assessments must be adjudicated by Tax Court of Canada

In 2011, Minister of National Revenue sent notice of assessment to individual for outstanding GST. In July 2015, CRA issued requirement to pay. In September 2015, individual claimed that he filed notice of objection. In October 2015, individual filed statement of claim under Simplified Action Rules of Federal Court seeking declaration that requirement to pay was null and void contrary to Indian Act, Treaty No. 8 and Constitution Act, and for damages for amounts seized pursuant to requirement to pay. Pursuant to judgment by Federal Court (FC), individual’s statement of claim was ordered struck without leave to amend on basis that claim disclosed no reasonable cause of action. Individual appealed. Appeal dismissed. In current case, FC held that essential character of individual’s claim was indirect challenge to validity of his 2011 tax reassessment. Such characterization did not amount to palpable and overriding error. Even though individual’s case was cast as damage claim, only damages sought flowed directly from tax re-assessment and sought reimbursement of monies paid in satisfaction of that re-assessment. Individual’s claim as pleaded was nothing but challenge to validity of tax re-assessment. Constitutional dimension of claim did nothing to alter this claim or to oust Tax Court of Canada’s (TCC) jurisdiction. Cases cited by individual confirmed that questions related to validity of tax assessments must be adjudicated by TCC irrespective of how claim is framed. Motions judge properly characterized claim as being indirect challenge to tax assessment. It was plain and obvious that TCC had exclusive jurisdiction over question.
Horseman v. Canada (2016), 2016 CarswellNat 5555, 2016 FCA 252, Gauthier J.A., Yves de Montigny J.A., and Gleason J.A. (F.C.A.).

Administrative Law


Decision to issue notice of compliance was reasonable

Reasonableness. Minister of Health made decision to issue notice of compliance (NOC) to TC Inc. for exemestane tablet, which was generic version marketed by PC Inc.. Minister of Health made decision to issue NOC to HH Inc. for its 100 mg/vial inflixmab powder solution, which was generic version marketed by J Inc. . PC Inc. brought application to challenge issuance of NOC. Federal judge found that standard of review of minister’s decision was correctness, that minister’s interpretation of regulations was incorrect and thus, decision to issue NOC was set aside. J Inc. also brought application to challenge issuance of NOC and on consent of parties, federal judge set aside decision to issue NOC. PC Inc. and J Inc. appealed and appeals were consolidated. Appeal allowed. Federal judge erred by reviewing minister’s decisions on standard of correctness. Applying standard of reasonableness, decision to issue NOC was reasonable. Contextual analysis did not rebut presumption of reasonableness. While regulations were enacted pursuant to Patent Act which fell under Ministry of Industry, not Health, this was too narrow of view of prevailing jurisprudence . Presumption of reasonableness applied when administrative decision-maker was interpreting not just its home statute, but also when decision-maker was interpreting “statutes closely connected to its function” which applied equally to regulations that were closely connected to function of Minister of Health.
Teva Canada Ltd. v. Pfizer Canada Inc. (2016), 2016 CarswellNat 5051, 2016 FCA 248, Eleanor R. Dawson J.A., Wyman W. Webb J.A., and Donald J. Rennie J.A. (F.C.A.); reversed (2014), 2014 CarswellNat 5409, 2014 CarswellNat 7072, 2014 FC 1243, 2014 CF 1243, Mary J.L. Gleason J. (F.C.).

Business Associations


Oppression claim was properly dismissed

R and M incorporated company but rarely complied with requirements of Canada Business Corporations Act. In May 2005, M resigned as officer and director of corporation. Corporation alleged M had also resigned as shareholder and accordingly transferred his shares to R. M applied for oppression remedy under s. 241 of Act, alleging he was still shareholder. Trial judge dismissed M’s claim, rejecting M’s version of events and finding that as of May 2005, M did not wish to be shareholder and asked to be removed. Court of Appeal dismissed M’s appeal. M appealed to Supreme Court of Canada. Appeal dismissed. Oppression claim was properly dismissed. Trial judge’s factual findings were not reviewable because no palpable and overriding error had been made. Fact that corporation fails to comply with requirements of Act does not, on its own, constitute oppression. M could have had no reasonable expectation of being treated as shareholder: he no longer was and expressly demanded not to be so treated. Corporation’s failure to observe corporate formalities in removing M as shareholder in accordance with his wishes could not be characterized as unfairly prejudicial to extent that omission deprived him of shareholder status.
Mennillo v. Intramodal inc (2016), 2016 CarswellQue 10615, 2016 CarswellQue 10616, 2016 SCC 51, 2016 CSC 51, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2014), 2014 CarswellQue 10625, 2014 QCCA 1515, Gagnon J.C.A., Vézina J.C.A., and St-Pierre J.C.A. (C.A. Que.).

Alternative Dispute Resolution

Question of law

Leave to appeal under arbitration legislation ought not to have been granted

Parties entered agreement by which petitioner, U Inc., leased fibre optic strands to BNS. By letter, BNS sought to exercise renewal option and requested that petitioner waive six months’ notice requirement. BNS did not include payment of $1.00 renewal fee. Petitioner later claimed that letter did not constitute valid exercise of option. Arbitrator found that BNS exercised option and that proposed modification of option was tendered only after making of new bilateral contract. Arbitrator found, in alternative, that if letter was not effective exercise of option, petitioner was estopped from relying on any defects in letter. Petitioner sought leave to appeal, and appealed. Leave was granted and appeal was allowed. Chambers judge found, in part, that arbitrator erred by failing to follow principle that qualified acceptance of offer constitutes counter-offer. Judge found, in part, that arbitrator erred by failing to accept parties’ agreement as to required consideration. Judge found, in part, that petitioner had no obligation to advise BNS that its purported exercise of option was defective. Judge ordered that award be amended to find that agreement required $1.00 as consideration for exercise of option; letter was qualified acceptance of option offer and was thus counter-offer extinguishing original offer; and, petitioner was not estopped from relying on defects in purported exercise of option. BNS appealed. Appeal was allowed, order was set aside, application for leave to appeal award was dismissed, and award was reinstated. Court of Appeal (C.A.) found that petitioner could not establish pure question of law arising from arbitrator’s interpretation of article of agreement and letter. C.A. found that threshold requirement for granting of leave to appeal under arbitration legislation was not met and leave to appeal ought not to have been granted. C.A. found that there was no consensus between parties on meaning of words in contractual documents. C.A. found that arbitrator had to determine true meaning of words in context and surrounding circumstances in which they were written. C.A. found that this engaged questions of mixed fact and law, which were not reviewable under statute provision. Petitioner appealed. Appeal dismissed. Court was of view that appeal should be dismissed substantially for reasons of C.A..
Urban Communications Inc v. BCNET Networking Society (2016), 2016 CarswellBC 3056, 2016 CarswellBC 3057, 2016 SCC 45, 2016 CSC 45, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2015), 2015 CarswellBC 1785, 2015 BCCA 297, D. Smith J.A., Bennett J.A., and Willcock J.A. (B.C. C.A.).



Confessions rule requires that oppressive conditions be caused or created by state

Accused presented himself at police station and claimed to have burned down his mother’s house. Police gave accused required warnings and advised of right to counsel. On voir dire trial judge held confession to be inadmissible as involuntary as accused, who was homeless, made it in order to be sent to jail. Trial judge held that fact that accused was homeless meant that he was suffering under oppressive conditions. Accused was acquitted. Crown appealed. Appeal allowed and new trial ordered. No nexus between threat or promise and confession as accused came to police detachment with express purpose of confessing to arson. Act of supplying accurate factual information to accused does not constitute inducement. Trial judge found that conduct of police was “unimpeachable” and “blameless” so not possible that oppression was a factor. Under confessions rule oppressive conditions must be caused or created by state.
R. v. Fernandes (2016), 2016 CarswellOnt 16289, 2016 ONCA 772, Doherty J.A., S.E. Pepall J.A., and C.W. Hourigan J.A. (Ont. C.A.).

Criminal Law

Post-trial procedure

Appeal from sentence
Trial judge improperly recorded absence of remorse as aggravating factor

Accused was sentenced to five years and three months imprisonment. Accused appealed from conviction and sentence. Appeal allowed in part. On sentence appeal, accused was entitled to pre-trial custody credit on 1.5:1 basis. Trial judge explicitly, and improperly, recorded absence of remorse as aggravating factor. Credit for 305 days of pre-sentence custody awarded. On remorse issue, sentence reduced by three months, to five years. No issue arose with forfeiture order or order made under s. 161 of Criminal Code. Trial, including sentence, was completed under 30 month ceiling suggested in 2016 Supreme Court of Canada judgment, and did not breach s. 11(b) of Charter of Rights and Freedoms.
R. v. Kidd (2016), 2016 CarswellOnt 15971, 2016 ONCA 757, MacPherson J.A., Epstein J.A., and Lauwers J.A. (Ont. C.A.).

Educational law

Colleges and universities

Student union was not subject to Charter

Applicants were university students who were members of pro-life organization seeking status as “student group.” University’s student union denied organization’s final appeal to be granted “student group” status. Applicants applied for declarative relief quashing student union’s decision. Application dismissed. It was not appropriate to exercise jurisdiction to review student union’s decision. Student union was private corporation with broad powers to act independently. Student union’s decision to grant or deny student group status was private decision by private entity, within its powers to make, and which did not engage principles of administrative law. Student union was not subject to Canadian Charter of Rights and Freedoms. There was no basis for conclusion that student union failed to take into account applicant’s rights to freedom of expression and association. To extent that student union had contractual obligation to consider and decide applicants’ request fairly and in accordance with its own procedures, that obligation was fully discharged. Applicants were free to continue to associate and express themselves on university campus, holding meetings or events and raising funds for their cause.
Grant v. Ryerson Students’ Union (2016), 2016 CarswellOnt 15862, 2016 ONSC 5519, Stewart J. (Ont. S.C.J.).

Business Associations

Legal proceedings involving business associations

Motion to quash appeal for want of jurisdiction was dismissed

Plaintiffs claimed defendants deprived them of their interest in corporations. Claim was subject of bifurcation order whereby determination of plaintiffs’ request for declarations as to their rights was split from their request for remedies related to any declared rights. Declaration was made that plaintiffs had one-third interest in corporations and in all monies, benefits and opportunities withdrawn or diverted directly or indirectly from those corporations. Defendants were ordered to make interim payments to plaintiffs pending later trial to determine what further remedies were available to plaintiffs. Defendants appealed. Plaintiffs brought motion to quash appeal for want of jurisdiction. Motion dismissed. Order under appeal was final. It was not appeal under Ontario Business Corporations Act to which s. 255 applied requiring appeal to Divisional Court. Appeal was not devoid of merit.
Buccilli v. Pillitter (2016), 2016 CarswellOnt 16393, 2016 ONCA 775, E.A. Cronk J.A., Paul Rouleau J.A., and Grant Huscroft J.A. (Ont. C.A.).


Statement of claim

Action was struck as disclosing no reasonable cause of action

Plaintiff D brought action in Federal Court, claiming right not to work while being afforded reasonable standard of living. Action was struck as disclosing no reasonable cause of action, with this finding being upheld on appeal. D appealed from Federal Court judgment. Appeal dismissed. D’s claim on appeal that she owned share of Consolidated Revenue Fund could not succeed. Previous claims were properly dismissed, as there was no basis in law for them.
Doell v. R. (2016), 2016 CarswellNat 4935, 2016 FCA 235, Gauthier J.A., David Stratas J.A., and Gleason J.A. (F.C.A.).

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