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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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Administrative Law


No reason why proceedings could not be heard one after the other

Appeal by appellants from decision of Federal Court confirming decision by prothonotary refusing to grant appellants’ motion for order that appellants’ judicial review applications be heard together or in the alternative that they be heard consecutively, with single book of authorities being filed. Appeal allowed. Decision was set aside. It was ordered that applications for judicial review be heard one after other before same judge at time and place to be fixed by judicial administrator, and single book of authorities being filed for both proceedings. Prothonotary erred in failing to address appellants’ alternative submission that proceedings be heard one after other before same judge. There was no reason why proceedings could not be heard one after other before same judge. No prejudice has been shown to result from separate but successive hearings.

Cargill Ltd. v. Canada (Attorney General) (June 11, 2012, F.C.A., Noel, Dawson and Stratas JJ.A., File No. A-367-11) 216 A.C.W.S. (3d) 816 (7 pp.).

Aboriginal Peoples


Returning officer not required to advise appellant that letternot notice of appeal

Appellant complained about voter eligibility and failures to produce proper identification. Appellant complained about nomination and eligibility of individual respondents to stand as candidates. Application for judicial review was dismissed because appellant had adequate and effective avenue of appealing to appeal arbitrator to redress returning officer’s ruling which appellant did not pursue. Appeal was dismissed. Returning officer was not under obligation to advise appellant that appellant’s letter was not notice of appeal and that appellant had not paid requisite fee. If returning officer misinterpreted or misapplied section of Election Code, appeal to appeal arbitrator would lie.

Orr v. Boucher (Apr. 17, 2012, F.C.A., Pelletier, Gauthier and Stratas JJ.A., File No. A-349-11) 216 A.C.W.S. (3d) 912 (6 pp.).



Public foundation had to have more than one trustee

Appellant foundation was charitable foundation and registered charity. Appellant had single trustee. All or substantially all of capital contributed to appellant trust was contributed by settlor, wife and entities controlled by them. Minister confirmed appellant’s designation as private foundation. Minister concluded appellant could not qualify as public foundation because trustee could not satisfy arm’s length trustee requirement. Appeal was dismissed. Minister correctly designated appellant to be private foundation. As long as appellant had single trustee, appellant could not be public foundation. Parliament in definition in s. 149.1 of Income Tax Act (Can.), signaled intention that there had to be more than one trustee of public foundation. Review of legislative context and purpose supported interpretation that public foundation had to have more than one trustee.

Sheldon Inwentash and Lynn Factor Charitable Foundation v. Canada (May 4, 2012, F.C.A., Dawson, Trudel and Stratas JJ.A., File No. A-235-11) 216 A.C.W.S. (3d) 502 (25 pp.).



Decision did not comply with statutory requirement that Minister give reasons

Appeal by accused, who was Canadian citizen being held in United States prison, from court decision that dismissed his application for judicial review of decision of Minister of Public Safety and Emergency Preparedness. Minister denied accused’s application, that was made under International Transfer of Offenders Act (Can.), to serve remainder of his prison sentence in Canada. Court found Minister’s decision to be reasonable and upheld it. Appeal allowed. Judgment set aside. Accused’s application for judicial review of Minister’s decision was allowed. Decision was set aside and matter was remitted back to Minister to decide on transfer request in accordance with reasons of this decision. Standard of review was reasonableness. Minister disagreed with advice provided by Correctional Service of Canada that accused was not likely to commit act of organized crime. In Minister’s view likelihood that accused would commit act of organized crime outweighed positive factors. Minister failed to answer two questions. First was on what basis Minister departed from CSC’s advice. Second was how Minister assessed relevant factors so that factors which did not favour accused’s return outweighed those which favoured his return. In this case, where there were factors that supported transfer, Minister had to demonstrate some assessment of competing factors so as to explain why he refused to consent to transfer. Without such assessment Minister’s decision was unreasonable because it was neither justified, transparent and intelligible. Nor did it comply with statutory requirement that Minister was to give reasons.

Lebon v. Canada (Minister of Public Safety & Emergency Preparedness)
(Apr. 27, 2012, F.C.A., Letourneau, Sharlow and Dawson JJ.A. File No. A-351-11) Decision at 97 W.C.B. (2d) 296 was reversed. 101 W.C.B. (2d) 465 (14 pp.).

Administrative Law


Judge erred by setting aside otherwise reasonable decision

Respondent entered Canada driving Ford Expedition motor vehicle (the “goods”) leased through dealership in Texas without reporting same to Canadian Customs officers. Respondent served with notice of ascertained forfeiture on May 8, 2002, specifying that goods unlawfully imported. Respondent requesting decision of Minister on June 5, 2002 and appeal faxed to Customs Collections on June 10, 2002. Matter not brought to attention of Recourse Directorate of Canada Border Services Agency (“CBSA”) until December 9, 2005. CBSA acknowledged receipt of appeal December 13, 2005, but registered letter affording respondent opportunity to provide additional information returned by Canada Post and resent January 20, 2006 by regular mail. CBSA sent decision letter dismissing respondent’s appeal on January 24, 2007, but decision letter returned by Canada Post and not resent until February 29, 2008. Federal Court Judge found that Minister failed to comply with Customs Act (Can.), to make decision “as soon as reasonably possible having regard to the circumstances”, thereby breaching rules of procedural fairness or natural justice. Although judge found Minister’s determination reasonable and rejected respondent’s contention he was prejudiced in ability to provide additional information or documents, he set aside Minister’s decision. Appeal to Federal Court of Appeal allowed. Since judge found respondent suffered no evidentiary prejudice, in order to impugn Minister’s decision he was required, as matter of law, to find some significant prejudice accruing to respondent such that delay tainted proceeding or contrary to interests of justice to allow Minister’s decision to stand. Judge made no such finding and erred, in absence of such finding, by finding abuse of process or breach of natural justice. Judge erred by setting aside otherwise reasonable decision.

Prue v. Canada (Minister of Public Safety and Emergency Preparedness) (Apr. 11, 2012, F.C.A., Sharlow, Dawson and Trudel JJ.A., File No. A-1-11) Decision at 195 A.C.W.S. (3d) 1016 was reversed. 214 A.C.W.S. (3d) 662 (20 pp.).

Aboriginal Peoples


Tax Court judge erred in attaching significant weight to fact that fish sold off-reserve

Taxpayer, status Indian and member of Grand Rapids First Nation, lived all his life on Grand Rapids Reserve. Tax Court of Canada judge rejected taxpayer’s submission that Minister of National Revenue erred by including in his income for 2001 and 2002 taxation years he earned from his commercial fishing business. Tax Court Judge concluded that impugned income not situated on reserve and not, therefore, exempt from tax under s. 87(1)(b) of Indian Act (Can.). He held that taxpayer’s fishing activity carried on in commercial mainstream as he caught fish off reserve, spent most working time during fishing season off reserve and sold entire catch to corporation, Freshwater, located off reserve. Taxpayer’s appeal allowed. Taxpayer was member of Grand Rapids Fishermen’s Co-op, an on-reserve institution. Co-op employs own workers to staff administrative office and packing station, both located on reserve. It assists fishers by providing them with supplies on credit basis and acts as agent in buying and selling of fish. Co-op grades, sorts and packs fish brought by its members. Freshwater collects fish from Co-op’s on-reserve packing station and sells fish in domestic and international markets. Freshwater transfers money to Co-op based on receipts issued by Co-op to fishers. Tax Court Judge erred in attaching significant weight to fact that all fish sold off-reserve. What Freshwater did with fish after purchasing them largely irrelevant for determining situs of fishing business income. Judge also attached more significance to Freshwater as customer than to Co-op, the on-reserve institution which played critical and pervasive role in all aspects of members’ fishing businesses. Even if earned in “commercial mainstream”, taxpayer’s income sufficiently closely connected to reserve to be situated there for purposes of income tax exemption.

Ballantyne v. Canada (Mar. 20, 2012, F.C.A., Evans, Pelletier and Layden-Stevenson JJ.A., File No. A-362-09) Decision at 178 A.C.W.S. (3d) 498 was reversed. 214 A.C.W.S. (3d) 660 (8 pp.).

Industrial and Intellectual Property


Undue weight not given to dictionary definition of “object”

Appeal by respondent from decision granting application under s. 6 of Patented Medicines (Notice of Compliance) Regulations (Can.), for prohibition order. Order prohibited issuance of Notice of Compliance to respondent to sell its version of anastrozole in Canada until after expiry of patent. Parties disputed interpretation of sentence in patent specification “It is a particular object of the present invention to provide aromatase inhibitory compounds with fewer undesirable side effects than [AG]”. Judge agreed with applicant that “object of the invention” refers to forward-looking or aspirational aim of invention and was not promise that anastrozole had achieved goal by date of filing. Judge concluded that respondent’s allegation that patent was invalid for lack of utility was not justified. Appeal dismissed. Application judge did not err in construction of patent’s promise. Undue weight not given to dictionary definition of “object”. Judge relied on dictionary definitions and synonyms to confirm that in its ordinary usage, “object” capable of bearing meaning he assigned to it based on other considerations. Examination of patent as whole supported conclusion that, unlike express claims of patent, object clause contained no more than forward-looking aim of invention. Fact that side-effects not mentioned elsewhere in patent was telling. Fact that pharmaceutical industry was seeking solution to particular problem would not lead POSITA to necessarily think “particular object” was that anastrozole solved one of most pressing research problems of the day. Judge did not err in preferring evidence of expert who testified that object clause set out long-term aim of producing fewer side effects. Meaning of expert’s alleged concession far from clear. Judge’s reasons, read in entirety, not internally incoherent.

Astrazeneca Canada, Inc. v. Mylan Pharmaceuticals ULC
(Apr. 11, 2012, F.C.A., Evans, Sharlow and Dawson JJ.A., File No. A-344-11) Decision at 205 A.C.W.S. (3d) 1065 was affirmed. 214 A.C.W.S. (3d) 588 (17 pp.).
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