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Industrial and Intellectual Property

COPYRIGHT

Publication done without consent of respondent

Respondent claimed that appellants infringed copyright in his literary works, particularly “Farmans” and “Talikas”.
Appellants admitted that “Farmans 1957-2009 - Golden Edition” included literary works covered by copyrights owned by respondent but claimed that respondent gave consent to publication. Book presented to respondent at 1992 Mehmani ceremony.
It had been printed by appellants few days prior. No indication as to who printed book or prepared compilation and no notice given to respondent, or anyone within his organization, of intention to seek respondent’s consent to reproduction, distribution and sale of copyrighted literary work included in book.
No evidence respondent knew or ought to have known that book not simply compilation printed for family’s personal use. Respondent applied for summary judgment on basis there was no possible genuine issue whether respondent gave consent.
Motion judge granted motion for summary judgment and permanent injunction precluding publication of Golden Edition and accompanying MP3 audio bookmarks. Appellants’ appeal dismissed. Not disputed that consent pursuant to Copyright Act (Can.), could be either express or implied.
Test to be applied objective with focus on whether owner of copyright can be presumed to have consented to otherwise infringing actions. Subjective belief in consent not particularly relevant.
Evidence established there was no genuine issue with respect to consent. Respondent filed material indicating he encourages followers to reflect on guidance he provides and believes that availability and level of circulation of his teachings not
satisfactory but these facts insufficient to establish consent.
Only inference to be drawn on evidence was that publication of Golden Edition done without consent of respondent. Appellants did not establish any defence based on laches, detrimental reliance or acquiescence.
Facts did not establish that respondent had appropriate knowledge of appellants’ activities at relevant time.

Aga Khan v. Tajdin (Jan. 16, 2012, F.C.A., Nadon, Sharlow and Gauthier JJ.A., File No. A-59-11; A-60-11) Decision at 329 D.L.R. (4th) 521, 199 A.C.W.S. (3d) 1280 was affirmed. 211 A.C.W.S. (3d) 440 (13 pp.).

Administrative Law

FREEDOM OF INFORMATION

Disclosing records to commissioner does not amount to revealing them

Canadian Broadcasting Corp. (“CBC”) received almost 900 access to information requests pursuant to Access to Information Act (Can.). Almost 200 of those requests refused and almost 100 of refused requests subject of complaints to Information Commissioner of Canada. Proceedings related to 16 refused requests that were subject of complaints. Section 68.1 of Act creates exclusions for three types of information but subject to exception that Act does not apply to information under control of CBC that relates to its journalistic, creative or programming activities, other than information relating to its general administration. CBC refused majority of access requests on ground that information requested related to journalistic, creative or programming activities without explanation as to exact nature of exclusion invoked. Commissioner ordered CBC to provide records related to 16 impugned requests pursuant to s. 36 of Act. Section 36 grants commissioner power to compel persons to produce documents requisite to investigation of complaint and to “examine any record to which [the] Act applies that is under the control of a government institution”. CBC argued records excluded from Act not records to which Act applies within meaning of s. 36. Federal Court Judge found that commissioner had to examine information excluded under s. 68.1 to determine whether exception applied. CBC appealed, seeking declaration that invocation of exclusion in s. 68.1 has effect of depriving commissioner of power to examine documents subject to refusal. Appeal dismissed. Documents referred to in s. 36(1)(a) must be subject to Act or, at least, capable of being viewed as such at time of examination. Otherwise, words “to which this Act applies” in s. 36(2) superfluous. Excluded record does not meet this requirement. Section 68.1 is exception to exclusion. Impossible for commissioner to determine whether information relates to general administration of CBC, and thus falls under s. 68.1 exception, without authority to review records, including those relating to journalisitc, creative or programming activities. Exclusions pertain not to records but rather to information. Nature of exception such that it may overlap with excluded information with result that review by commissioner required to give effect to exception. Parliament intended that information related to journalistic, creative or programming activities be excluded from application of Act but wanted information related to CBC’s general administration to not be excluded. Commissioner’s role to initially determine whether exception applies and to exercise recommendation power. Commissioner’s investigations confidential; disclosing records to commissioner does not amount to revealing them. Difficult to see prejudice if commissioner to take cognizance of records.

Canadian Broadcasting Corp. v. Canada (Information Commissioner) (Nov. 23, 2011, F.C.A., Noel, Trudel and Mainville JJ.A., File No. A-391-10) Decision at 194 A.C.W.S. (3d) 346 was affirmed. 210 A.C.W.S. (3d) 384 (37 pp.).

Industrial And Intellectual Property

PATENTS

Respondent prevented from getting into market because of appellant’s prohibition application

Appellant’s application for prohibition prevented respondent from marketing Apo-Norfloxacin for over five years. Relying on s. 8 of the Patented Medicines (Notices of Compliances) Regulations (Can.), respondent sued appellant for damages. Federal Court awarded respondent damages. Federal Court ruled in favour of respondent’s action against appellant under s. 8 of Regulations. In course of its reasons, Federal Court ruled that 1998 version of s. 8 of Regulations (“1998 Regulations”) applied to this case, and not 1993 version of s. 8 of Regulations (“1993 Regulations”). Appellant appealed from that ruling. Appellant also submitted that Federal Court erred in fact and law in concluding that respondent suffered loss as result of appellant’s prohibition application. Appellant’s appeal was dismissed. Appellant’s application for prohibition was “pending” when 1998 Regulations came into force. Therefore, by operation of transitional provision in 1998 Regulations, 1998 Regulations applied in this case. 1998 Regulations could not be said to be retroactive or retrospective or interfere with any vested rights of appellant. Federal Court Judge correctly held that 1998 Regulations were authorized by s. 55.2(4) of Patent Act (Can.), were valid, and applied in this case. Federal Court found that respondent suffered loss as result of appellant’s prohibition application. Respondent established, to satisfaction of Federal Court, that it was prevented from getting into norfloxacin market because of appellant’s prohibition application. In establishing this, respondent satisfied Federal Court that, on balance of probabilities, it would have had access to available supply of non-infringing norfloxacin. There was sufficient evidence upon which Federal Court could have made factual findings it did, and those findings were not susceptible to review in appellate court.

Apotex Inc. v. Merck & Co. (Nov. 25, 2011, F.C.A., Sexton, Layden-Stevenson and Stratas JJ.A., File No. A-154-10) Decision at 186 A.C.W.S. (3d) 1115 was affirmed. 210 A.C.W.S. (3d) 224 (32 pp.).

Employment

PUBLIC SERVICE

Entitlement to per diem rate of remuneration sufficient to meet employment test

Minister of National Revenue determined that two committee members engaged in pensionable employment under Canada Pension Plan while members of Ontario Judicial Appointments Committee established under Courts of Justice Act (Ont.). Ontario, responsible for remunerating members of committee, successfully appealed. Minister’s appeal allowed. Mandate of committee to recruit, interview and recommend to Attorney General suitable and qualified candidates for appointment as judges to Ontario Court of Justice. Committee
independent of Ministry of Attorney General and provincial government and members not employees but rather holders of an office. They were paid for each day on which they rendered services. Number of days on which services required unpredictable, varying with number of judicial vacancies. Pursuant to Canada Pension Plan definition of “office” and regulations, member of committee engaged in pensionable employment if position carries entitlement to “fixed or ascertainable stipend or remuneration”. Legal entitlement to per diem rate of remuneration established in advance sufficiently “fixed or ascertainable” to meet test.

M.N.R. v. Ontario
(Nov. 16, 2011, F.C.A., Nadon, Sharlow and Dawson JJ.A., File No. A-72-11; A-73-11) 210 A.C.W.S. (3d) 275 (6 pp.).

Employment Insurance

ENTITLEMENT

Board did not examine facts of case in relation to relevant principles of law

While attending college respondent worked part-time at Canadian Tire store in Winnipeg. When the school term was over in April 2009, he moved to his parents’ home in Minnedosa to find full-time summer employment and save on living expenses. When he returned to Winnipeg as planned in August 2009, he claimed employment insurance benefits. Employment Insurance Commission denied benefits. Board allowed respondent’s appeal from the commission’s decision. Umpire dismissed Crown’s appeal. Crown brought present application for judicial review. Application allowed. Board acknowledged legal test for “just cause” but did not examine facts of respondent’s case in relation to relevant principles of law. Rather than applying the no reasonable alternative test board considered whether respondent’s conduct was reasonable in the circumstances and concluded that his choice qualified as reasonable behaviour. Umpire erred when he failed to address applicable law regarding just cause for leaving employment. While respondent may have had good personal cause to leave employment he did not have just cause for leaving his employment within the meaning of Employment Insurance Act (Can.).

Canada (Attorney General) v. Graham
(Nov. 16, 2011, F.C.A., Evans, Pelletier and Layden-Stevenson JJ.A., File No. A-429-10) 209 A.C.W.S. (3d) 566 (7 pp.).

Administrative Law

FETTERING OF DISCRETION

No practical end served by setting aside Minister’s decision

This was appeal from Federal Court’s decision upholding Minister of National Revenue’s decision. Appellants used common financial representative to make tax filings. For 2000 to 2003 taxation years appellant’s representatives’ were of opinion that they did not need to file T1135 forms, contrary to wording of s. 233.3(3) of Income Tax Act (Can.). Canadian Revenue Agency (“CRA”) alerted appellants to fact that they had not filed forms. Appellants filed forms late and explained misunderstanding. Appellants’ representatives requested relief under s. 220(3.1) of Act against penalty and interest assessed against appellants for late filing of forms. CRA denied request, finding that appellants did not fall within one of three specific situations set out in information circular. Appellants applied for relief to Minister, who reduced interest for six months due to CRA’s delay in replying. Appellants applied for judicial review. Federal Court found that Minister had not fettered discretion and that decision was reasonable. Appeal dismissed. Standard of review of Minister’s decision was reasonableness. Decision that was product of fettering of discretion was unreasonable. In circumstances, Minister did not draw upon law that was source of authority, s. 220(3.1) of Act, but fettered discretion by having regard to only three specific scenarios set out in information circular. Minister’s reasons as set out in decision letter evidenced that Minister restricted consideration to three scenarios in information circular. Record shed no light on grounds for Minister’s decision and decision letter must speak for itself. As Minister did not draw upon law that was source of authority and drew only on information circular, decision was unreasonable. However, there would be no practical end served by setting aside Minister’s decision. Appellants’ excuses and justifications for delay in filing forms and grounds offered in support of relief had no merit. Granting relief under s. 220(3.1) would be unreasonable exercise of discretion.

Stemijon Investments Ltd. v. Canada (Attorney General)
(Oct. 26, 2011, F.C.A., Noel, Trudel and Stratas JJ.A., File No. A-376-10; A374-10; A375-10; A-377-10; A-378-10; A-382-10) Decision at 193 A.C.W.S. (3d) 1016 was affirmed. 209 A.C.W.S. (3d) 721 (30 pp.).

Labour Relations

CERTIFICATION

Security personnel essential to ensuring detention of peoplein facility

Company was large security company that provided security personnel to clients on contract. Most of the jobs held by company’s employees were governed by provincial legislation. Some jobs held by company employees such as those working in airport security were governed by federal legislation. Company obtained contract to provide security personnel to immigration detention centre. Union sought certification to represent company’s security personnel at detention centre. Conseil canadien des relations industrielles dismissed application for certification since it ruled that it did not have jurisdiction to hear application since these employees fell under provincial jurisdiction. Review panel at Conseil upheld decision. Union brought application for judicial review. Application allowed. Standard of review was correctness. There was no question that detention centre itself was under federal jurisdiction. Issue was whether job of security personnel had essential or fundamental link to operation of federal facility. Security personnel were essential to ensuring detention of people in the facility in accordance with federal law. Detention would not be possible without services of security personnel. Conseil committed error by concluding that their work was non-essential simply due to fact that detainees were mostly non-violent. Fact that contract was of specified duration did not change essential nature of work.

Syndicat des Agents de Securite Garda, Section CPI-CSN v. Corp. de Securite Garda Canada
(Nov. 4, 2011, F.C.A., Noel, Trudel and Mainville JJ.A., File No. A-471-10) Reasons in French. 208 A.C.W.S. (3d) 849 (40 pp.).
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