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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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Professions and Occupations

Barristers and solicitors

Relationship with client

Motion for removal of law firm was dismissed

In 2008 plaintiffs sought representation in respect of Canadian patent pending and possible infringement claim. One of plaintiffs, CS, contacted lawyer at law firm. Lawyer informed CS that he would have to complete standard conflict check. Lawyer informed CS that he could not act for plaintiffs due to conflict of interest. Lawyer provided CS with recommendations as to potential law firms to represent plaintiffs. Law firm was later appointed as solicitors of record for defendants in ongoing matter opposing parties. In 2015, plaintiffs brought motion for removal of law firm on basis of 2008 interactions between CS and lawyer. Prothonotary dismissed motion. Federal Court dismissed plaintiffs’ appeal. Plaintiffs appealed. Appeal dismissed. Prothonotary found lawyer established that no information was imparted which could be relevant to underlying dispute. Although lawyer could not recall in detail seven year old conversation, prothonotary found that he was seasoned lawyer accustomed to his firm’s conflict of interest review procedure. His handwritten notes taken during phone call corroborated his position that no advice or counselling was given or sought, and that information given was general in nature. Prothonotary’s conclusion was open to him on evidence provided.
Sikes v. EnCana Corp. (2017), 2017 CarswellNat 444, 2017 FCA 37, Marc Noël C.J., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 2708, 2016 FC 671, B. Richard Bell J. (F.C.).


Federal and provincial pension plans

Federal pension plans

Tribunal was not entitled to dismiss matter on merits without oral hearing

Appellant R claimed entitlement to disability-related benefits. R applied to Federal Court for relief, with application being dismissed. R also filed for judicial review of tribunal decision, finding that proper identification had not been made by R. R brought appeal and judicial review before appeals court. Appeal and judicial review dismissed. Appeal tribunal could have determined application for judicial review differently. Tribunal was not entitled to dismiss matter on merits without oral hearing, because of decision of appeal court. However, sending matter back for reconsideration would have no effect on outcome. R did have opportunity to make submissions. R conceded he would have largely reiterated written submissions at oral hearing.
Robbins v. Canada (Attorney General) (2017), 2017 CarswellNat 405, 2017 FCA 24, David Stratas J.A., Webb J.A., and Scott J.A. (F.C.A.); affirmed (2014), 2014 CarswellNat 2463, 2014 CarswellNat 3438, 2014 FC 689, 2014 CF 689, John A. O’Keefe J. (F.C.).
Professions and Occupations

Labour and Employment Law

Public service employees

Termination of employment

Adjudicator’s determination was unreasonable

Grievor was federal public servant, whose last assignment involved working as civilian clerk at RCMP district office. RCMP management spoke to grievor about certain issues, and when that did not lead to improvement in her performance and behaviour, levied three and then 10-day suspension. Security review process culminated in revocation of grievor’s reliability status, and termination followed as grievor’s position required that she possess valid reliability status. Seven grievances filed by grievor were referred to adjudication, and adjudicator dismissed grievances. Grievor’s application for judicial review was dismissed. Grievor appealed. Appeal allowed. Six of grievor’s grievances were remitted for re-determination. Adjudicator’s determination that grievor was not subject of disguised discipline was unreasonable. Security review process was used as means to terminate grievor’s employment because her supervisors were dissatisfied with her workplace performance and behaviour. Grievor should have been accorded right to have reasons for her termination reviewed under cause standard. Interpretation of Public Service Labour Relations Act adopted by adjudicator deprived grievor of this right and, if allowed to stand, would largely hollow out protection from dismissal without cause afforded to employees under Act.
Bergey v. Canada (Attorney General) (2017), 2017 CarswellNat 276, 2017 FCA 30, M. Nadon J.A., Johanne Gauthier J.A., and Mary J.L. Gleason J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 1511, 2015 CarswellNat 8344, 2015 FC 617, 2015 CF 617, Roger T. Hughes J. (F.C.).

Civil Practice and Procedure



Motion to amend statement of claim in patent infringement action was dismissed

Plaintiffs sought leave in Federal Court to amend their statement of claim in patent infringement action to add three individuals as additional defendants and to add claim for joint and several liability. Motion was dismissed by prothonotary of Federal Court. Appeal was dismissed. Plaintiffs appealed. Appeal dismissed. Federal Court did not err in law in identifying and applying legal principles concerning amendment of pleadings, in its understanding of case law regarding personal liability of directors and officers, or with respect to legal principles to be applied regarding personal liability of third parties. There was no palpable and overriding error. Federal Court took into account all relevant pleadings. Facts set out in proposed pleading did not establish type of conduct necessary for personal liability. Pleaded facts were to effect that each of corporate defendants infringed plaintiff’s patent, but these were not sufficient to support claim for joint and several liability.
NOV Downhole Eurasia Ltd. v. TLL Oilfield Consulting Ltd. (2017), 2017 CarswellNat 277, 2017 FCA 32, David Stratas J.A., Mary J.L. Gleason J.A., and Judith M. Woods J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 2276, 2016 CarswellNat 3772, 2016 FC 685, 2016 CF 685, B. Richard Bell J. (F.C.).


Income tax

Administration and enforcement

It was not unjust to order taxpayer to pay security for costs

Security for costs. Taxpayer was resident outside of Canada and appealed assessment. Minister of National Revenue brought motion for order requiring taxpayer to pay security for costs. Tax Court judge granted motion and ordered taxpayer to pay $9,000 as security for costs without providing separate reasons. Taxpayer appealed. Appeal allowed. Order was set aside, Minister’s motion was granted, and taxpayer was ordered to pay $13,850 as security for costs. Reasons fell short of standard. Examining order in light of record, basis for order could not be discerned. Matter was considered de novo. Since taxpayer did not reside in Canada, it would be difficult for Minister to enforce any costs award it might receive. Evidence offered by taxpayer concerning his financial condition was too narrow and general to be given much weight, so Minister was entitled to order requiring taxpayer to provide security for costs. Minister’s estimates for discoveries and hearings were reasonable. It was not unjust to order taxpayer to pay $13,850 as security for costs in three installments, even though taxpayer ended up in worse position after his appeal.
Mathias v. R. (2017), 2017 CarswellNat 377, 2017 FCA 19, David Stratas J.A., Webb J.A., and Scott J.A. (F.C.A.).

Human Rights

Practice and procedure

Commissions, tribunals and boards of inquiry

Commission had discretion to refuse to investigate complaint

Applicant was immigration officer for Citizenship and Immigration Canada. Applicant alleged he was discriminated against as part of selection and hiring process for job position. Applicant sent letter to Human Rights Commission, informing it that he wanted to file complaint of discrimination against his employer. Commission decided not to rule on complaint because complaint was inadmissible under s. 41(1)(e) of Canadian Human Rights Act as complaint was filed after one-year expiration period. Applicant’s application for judicial review was dismissed. Judge concluded Commission had discretion to refuse to investigate complaint and that decision was not unreasonable. Judge found there was no breach of procedural fairness in limiting applicant to 10 pages in order to make his written submissions. Judge found that procedure established by Commission did not constitute violation of applicant’s freedom of expression. Applicant appealed. Appeal dismissed. Judge did not make any reviewable error by adopting and applying standard of reasonableness to Commission’s decision and dismissing complaint under Act, and standard of correctness on issue of procedural fairness. Even if Commission would have taken May 25, 2012 as date of last discriminatory event, filing of complain on July 9, 2013 would have nevertheless been outside permitted period. Commission did not commit any breach of procedural fairness in applying its procedure of limiting written submissions to 10 pages. Commission did not err in concluding applicant did not submit sufficient evidence to establish that his mental state prevented him from filing his complaint within prescribed time limit.
Jean Pierre c. Canada (Citoyenneté et Immigration) (2017), 2017 CarswellNat 252, 2017 CAF 26, A.F. Scott J.A., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 10840, 2015 CarswellNat 7384, 2015 FC 1423, 2015 CF 1423, Denis Gascon J. (F.C.).

Intellectual Property


Actions for infringement

This was not proper case to apportion defendants’ profits
Plaintiff patent owner owned patent which claimed drug perindopril. Federal Court held that patent was infringed by defendants through manufacture in Canada and sale of perindopril tablets. Plaintiffs elected to recover profits defendants earned by reason of their infringing activities. Federal Court determined amount of defendants’ profits which were attributable to infringing activity. This required Federal Court to consider manufacture and sale of perindopril tablets in Canada as well as their sale abroad. With respect to export sales, Federal Court rejected argument that defendants’ profits should be reduced by taking into account availability of non-infringing alternatives, and argument that their profits should be reduced on basis that portion was attributable to non-infringing services they provided. Defendants appealed. Appeal allowed in part. Federal Court erred in law by rejecting relevance at law of any available non-infringing perindopril and failed to adequately consider evidence adduced as to ability and willingness of three suppliers to provide non-infringing perindopril. Issue would be remitted to Federal Court. While Federal Court committed extricable error of law in its interpretation of contracts between defendants and certain affiliates, it did not err in its ultimate conclusion that this was not proper case to apportion defendants’ profits.
Apotex Inc. v. ADIR (2017), 2017 CarswellNat 217, 2017 FCA 23, Eleanor R. Dawson J.A., Boivin J.A., and Woods J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 2838, 2015 CarswellNat 7793, 2015 FC 721, 2015 CF 721, Jocelyne Gagné J. (F.C.).
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