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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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Intellectual Property

Copyright

Licences

Board erred in ignoring expert evidence

Copyright Board of Canada certified royalty rates to be collected by Canadian Copyright Licensing Agency for reproduction of works in its repertoire by school institutions during two tariff periods. Board applied “volume times value” methodology, pursuant to which volume of compensable copying was multiplied by estimated value of each page of copied work for one of four genres included in agency’s repertoire: books, periodicals, newspapers and consumables. Agency brought application for judicial review. Application granted in part. Only reviewable error concerned coding errors on repertoire; this matter was to be remitted for reconsideration. Board erred in ignoring expert evidence provided by agency to correct and clarify breadth of repertoire as described in volume study. In circumstances of this case, it was not unreasonable for board to infer that copying of one or two pages of book did not constitute reproduction of “substantial part of work” within meaning of s. 3 of Copyright Act. Board did not disregard burden of proof. Board’s purpose was to come to its own “impression” of what was fair in best manner possible considering that both parties had agreed to use aggregate data to establish volume of copying during relevant period. Board did not breach its duty to act fairly. Board used methodology that was simply practical and mathematical way of reflecting relative weight given by board to various factors used to form its “impression.” Board’s overall determination that large portion of exposures were fair was not unreasonable. Board followed previous cases where only quantitative proportion of work was considered, and there was no error in board’s reasoning in this respect. Board did not err with respect to character of dealing, in fair dealing analysis. In explaining why looking at aggregate volume of copies was not helpful to its assessment of whether copies were widely distributed, board reasonably applied Supreme Court of Canada’s teachings in particular cases. Board did not err with respect to effect of dealing. In terms of realistic alternatives, this factor did not support finding of unfairness given that agency’s evidence on this point was greatly limited in scope and detail. Agency did not establish board’s assessment of amount of exposures that should be excluded for compensability on basis of fair dealing pursuant to s. 29 of Act was unreasonable.
Canadian Copyright Licensing Agency v. British Columbia (Ministry of Education) (2017), 2017 CarswellNat 163, 2017 FCA 16, M. Nadon J.A., Eleanor R. Dawson J.A., and Johanne Gauthier J.A. (F.C.A.).

Criminal Law

Prisons and prisoners

Regulation

Independent chair reasonably applied modified objective standard for applicant’s conduct

Correctional service officers found and seized four gallons of liquor in applicant’s cell. After discovery of liquor, applicant asked to be placed in administrative segregation for fear of safety. Applicant pleaded not guilty to disciplinary offence and raised defence of duress. Applicant testified that inmates used his cell to manufacture liquor, forcing him to keep it in his cell in exchange for reduction of debts he contracted while in prison and that he saw no other way out but to accept liquor. Applicant was convicted of offence. Applicant’s application for judicial review was granted. Attorney General of Canada appealed. Appeal allowed. Independent chairman did not err in failing to analyze last three criteria in modified objective standard of defence of duress. Independent chair reasonably applied modified objective standard for applicant’s conduct. Applicant knew solution but ignored it when he breached establishment rules by keeping prohibited liquid mixture in his cell. Independent chairman concluded that applicant knew and could seek protection, because that it exactly what he did once seizure was made.
Canada (Procureur général) c. L’Espérance (2016), 2016 CarswellNat 7426, 2016 CAF 306, Noël C.J., Johanne Trudel J.A., and Boivin J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 12, 2016 CarswellNat 1950, 2016 FC 19, 2016 CF 19, Sylvie E. Roussel J. (F.C.).

Commercial Law

Agricultural products

Miscellaneous

Respondent did not transport cows in violation of Health of Animals Regulations (Can.)

Corporate respondent’s employee was charged with transporting cows in violation of s. 138(4) of Health of Animals Regulations. Employee attempted to raise two cows that were lying on side but without success. Inspector found that there was trampling and muscle tremors and that cow was unfit for transport. Canada Agricultural Review Tribunal found that corporate respondent did not transport cows unfit for transport. Attorney General of Canada brought application for judicial review. Application dismissed. Decision was reasonable. Regulations did not retain capacity for cow to rise independently as sole criterion for determining fitness for transportation. It was therefore up to carrier during transport and tribunal to assess whether cow was unfit given context of each case.
Canada (Procureur général) c. L. Bilodeau et Fils Ltée (2017), 2017 CarswellNat 108, 2017 CAF 5, Scott J.A., Richard Boivin J.A., and De Montigny J.A. (F.C.A.).

Tax

Income tax

Losses

Taxpayer’s losses were denied in their entirety

Taxpayer L-M deducted against his employment income of $70,000 to $80,000 aggregate business and rental losses of $52,748 for 2006, $61,625 for 2007, and $67,768 for 2008. L-M claimed significant losses from arrangement with P Ltd.. Taxpayer L reported small amount of business income and deducted business losses from purported business carried on in common with L-M, being $3,846 in 2006, $336 in 2007, and $11,188 in 2008. Taxpayers reported losses as 80/20 partners in partnership that was distributor for MA business. Minister reassessed taxpayers to deny losses in their entirety. Tax Court judge dismissed taxpayers’ appeals. Judge found that losses claimed with respect to P Ltd. were not substantiated. L-M appealed. Appeal dismissed. Judge did not misunderstand issue that was before her. Net effect of judge’s decision would be same regardless of whether it was determined that L-M did not have source of business or property income in relation to P Ltd. or MA activity or that expenses in dispute were not incurred by him for purpose of gaining income from business or property, with result that revenue for each activity would be equal to expenses allowed for each activity. Judge did not make any error by focusing on issue of whether L-M had substantiated amounts claimed as losses. Judge did not err in finding that L-M had not substantiated that he had incurred amounts as expenses for purpose of gaining income from business or property. Judge did not err in determining that L-M’s testimony was so vague and conflicting as to be unreliable except to extent it was supported by other evidence.
Lubega-Matovu v. R. (2016), 2016 CarswellNat 7427, 2016 FCA 315, Eleanor R. Dawson J.A., Wyman W. Webb J.A., and Richard Boivin J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 2214, 2015 TCC 147, Judith M. Woods J. (T.C.C. [Informal Procedure]).

Administrative Law

Discretion of tribunal under review

General principles

Tribunal used improper section of law to dismiss procedural fairness complaint

Appellant T was complainant to public service tribunal, claiming she had been subject to reprisal from respondent employer Crown. Tribunal determined that they had no authority to deal with complaint. T claimed that standards of review used were improper. T also claimed that her procedural fairness rights were violated, as applicable section of law was not used by tribunal. T applied for judicial review of tribunal decision. Application was dismissed. T appealed from dismissal of application. Appeal allowed. Tribunal used improper section of law to dismiss procedural fairness complaint. Commissioner of tribunal did not disclose that this section was being considered to dismiss complaint. T was misinformed, and could not have known case she had to meet. Matter was referred back to tribunal, to be determined in accordance with reasons of reviewing court.
Therrien v. Canada (Attorney General) (2017), 2017 CarswellNat 61, 2017 FCA 14, Scott J.A., Boivin J.A., and Mary J.L. Gleason J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 10847, 2015 CarswellNat 7151, 2015 FC 1351, 2015 CF 1351, B. Richard Bell J. (F.C.).

Intellectual Property

Patents

Miscellaneous

Six-year limitation period could not be applied to all acts of infringements

Limitation period. Respondent AC Inc. claimed interest in 693 Patent. 693 Patent was issued on December 3, 1991, thus was subject to application of old Patent Act, which did not have specific section dealing with limitation period applicable to infringement actions. Since 1993, in current version of Patent Act, s. 55.01 provides that six-year time limitation applies to acts of infringement. AC Inc. brought infringement action against appellant A Inc. Federal Court found that five claims, including Claim 1, were valid and had been infringed by A Inc. Federal Court concluded that since 2004, and up to expiration of 693 Patent in 2008, A Inc. directly infringed 693 Patent by making and selling its product in Canada and induced infringement by its customers and by end-users throughout Canada. Federal Court held that six-year limitation applied to all acts of infringements by A Inc. A Inc. challenged time limitation applicable to certain products that were made, sold and delivered in Ontario and to which, in its view, two-year limitation should apply. It also contested that exportation of infringing products meant that six-year limitation applied. Appeal allowed in part. Judgment varied. If Federal Court’s conclusion was based on its reading that words “a cause of action arising otherwise than in a province” in s. 39(2) of Act as though they said “all causes of action, any of which arose otherwise than in a single province”, Federal Court erred in its interpretation. Indeed, having regard to text of s. 39(1) of Act and to provincial jurisdiction over property and civil rights and that each act of infringement constituted distinct cause of action, such interpretation was unreasonable. Where law is set out in statute, court must articulate law as it is defined in that statute. Here, statute requires inquiry into place where each cause of action arose. For purposes of limitation analysis, critical fact was that, following jurisprudence of this Court, cause of action arises in province if all elements of cause of action occur in that province. Hence provincial limitation period would apply to acts of infringement limited to single province. Federal Court could not simply apply six-year limitation set out in s. 39(2) to all infringing activities of A Inc. To that extent, Federal Court’s judgement had to be modified to reflect possibility that some transactions would be subject to applicable provincial limitation period. Decision as to how that determination should be done was best left to Federal Court.
Apotex Inc. v. AstraZeneca Canada Inc. (2017), 2017 CarswellNat 40, 2017 FCA 9, J.D. Pelletier J.A., Johanne Gauthier J.A., and A.F. Scott J.A. (F.C.A.); varied (2015), 2015 CarswellNat 2415, 2015 CarswellNat 5054, 2015 FC 671, 2015 CF 671, R.L. Barnes J. (F.C.).

Human Rights

What constitutes discrimination

Race, ancestry or place of origin

Law and facts before tribunal did not reasonably lead to finding of discrimination

Complainant had worked for many years on term contracts as customs inspector. He had tried twice to secure permanent position but was turned down both times. Complainant filed unsuccessful complaint with Canadian Human Rights Commission alleging discrimination on basis of race, national or ethnic origin, age, and perceived disability of obesity. Decision was set aside on appeal and remitted for reconsideration, where second tribunal found in complainant’s favour. With respect to Vancouver competition, tribunal found that respondent had been wrongly disqualified. Attorney General for Canada (“AG”) successfully sought judicial review of second tribunal’s decision. Complainant appealed. Appeal dismissed. Judge was correct in finding that issue before tribunal was relatively narrow Tribunal’s findings as to witness credibility were due less deference than credibility findings are usually given, because tribunal based its decision on transcript alone without advantage of hearing witnesses directly, but parties agreed that extensive record would be adequate for purposes of reconsideration. Judge was correct in finding that law and facts before tribunal did not reasonably lead to finding of discrimination. Tribunal’s decision was not supported by record, and tribunal substituted its assessment of complainant’s qualifications for that of selection board’s when it held that complainant had been discriminated against. There was no basis for adverse credibility findings made by tribunal in regards to AG’s witnesses. Tribunal’s decision did not fall within range of defensible outcomes based on facts and law.
Turner v. Canada (Attorney General) (2017), 2017 CarswellNat 17, 2017 FCA 2, M. Nadon J.A., A.F. Scott J.A., and J. Woods J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 5271, 2015 CarswellNat 9290, 2015 FC 1209, 2015 CF 1209, James W. O’Reilly J. (F.C.).
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Law Times poll

A Law Times column examines whether the Law Society of Upper Canada should change its name to the Law Society of Ontario, in light of different social changes, such as the Truth and Reconciliation Committee’s Calls to Action. Should LSUC change its name?
Yes, it’s time for LSUC to catch up with the times, and update its name.
No, the name of the LSUC is appropriate, and changing it would not accomplish much.