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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

BOARDS AND TRIBUNALS

Agency failed to consider and decide central issues including settlement agreement

Agency determined that it could adjudicate complaint concerning noise and vibration arising from operations at Rail Yard notwithstanding that parties previously entered settlement agreement with respect to same complaint. Appeal was allowed. Where parties finally resolved complaint in settlement agreement, practical effect of agency decision to ignore settlement agreement and adjudicate issues previously resolved would be to denude collaborative measures of any effect. Submission that parties did not present settlement agreement as final and binding agreement that would bar adjudication of second complaint was untenable. Agency failed to consider and decide central issues by parties including effect of settlement agreement. Decision was unreasonable.

BNSF Railway Co. v. Canadian Transportation Agency (Sep. 28, 2011, F.C.A., Noel, Pelletier and Dawson JJ.A., File No. A-25-11) 207 A.C.W.S. (3d) 183 (15 pp.).

Employment

PUBLIC SERVICE

Requirement to post bargaining unit vacancies would negate Senate’s hiring policy

Parliamentary Employment and Staff Relations Act (Can.), establishes special regime governing labour relations of employees who work within House of Commons and Senate. Section 55(2) prohibits board from including in arbitral award any matter dealing with standards, procedures or processes governing appointment, promotion or transfer of employees. Staffing and hiring governed by employer policies rather than collective agreements. Public Service Alliance of Canada (“PSAC”) certified to act as bargaining agent for “Operational Group” of Senate. Bargaining negotiations for renewal of collective agreement for this group did not lead to new collective agreement and PSAC sought binding arbitration under Act. Public Service Labour Relations Board issued arbitral award. PSAC took issue with only one determination which concerned posting of bargaining unit vacancies. PSAC proposed to include new provision in collective agreement which would require Senate to post bargaining unit vacancies. Senate objected on basis that s. 55(2) of Act prohibits such proposal from being considered. Board held it did not have jurisdiction to consider such proposal. PSAC’s application for judicial review dismissed. Applicable standard of review is reasonableness. Requirement to post bargaining unit vacancies would negate Senate’s current hiring policy allowing for appointments to proceed without any advertisement in appropriate circumstances. Board acted reasonably in concluding it did not have jurisdiction. Lack of detailed reasons result of Act and peculiarities associated with binding arbitral awards. Act limits extent of reasons required. Board focused on relevant factors and evidence, considered representations of parties and did not impede intelligent judicial review.

P.S.A.C. v. Senate of Canada
(June 28, 2011, F.C.A., Blais C.J., Sharlow and Mainville JJ.A., File No. A-301-10) 205 A.C.W.S. (3d) 126 (17 pp.).

Industrial And Intellectual Property

PATENTS

Trial judge did not apply three-prong test for determination of inducement

Appeal of decision declaring that appellants had infringed respondents’ patent. Respondents had developed seal assembly used around pump shafts in oil wells to prevent oil from escaping around shafts. Respondents had sold prototype to two other companies and then obtained patent. Appellants started manufacturing and selling similar design. Lower court affirmed that appellants had infringed respondents’ patent rights and issued injunctive relief. Sale to other companies did not constitute disclosure to public even without confidentiality regime since expectation of confidence existed. Appeal was based on claims construction, prior disclosure, obviousness, witness credibility, inventorship, misrepresentations to Patent Office and adverse inferences. Appeal partially allowed with respect to adverse inferences. Ruling of infringement with respect to method claim was reversed as appellants did not practice such method. Trial judge had assumed that sales to customers occurred and that they would have used instruction manual, thus, inferring that there appellants had induced third parties to infringe method claim. Trial judge did not apply three-prong test for determination of inducement. Significant gaps in evidentiary support existed. Court returned issue of infringement of method claim to lower court judge for redetermination in accordance with established test. All other arguments failed as appellants did not show palpable and overriding error by trial judge.

Weatherford Canada Ltd. v. Corlac Inc. (July 18, 2011, F.C.A., Nadon, Evans and Layden-Stevenson JJ.A., File No. A-282-10) Decision at 189 A.C.W.S. (3d) 478 was reversed in part. 204 A.C.W.S. (3d) 888 (87 pp.).

Civil Procedure

COSTS

Risks of costs being awarded did not disappear when complainant decided not to defend tribunal’s determination

Canadian International Trade Tribunal made procurement determinations upholding, in part, complaints made by complainant pursuant to Canadian International Trade Tribunal Act. Complaints related to contracts issued to qualified bidders in process governed by Networking Equipment Support Services National Master Standing Offer which is means by which federal government departments may obtain computer networking equipment. Crown contended tribunal lacked jurisdiction to determine complaints because complainant did not submit bid. Tribunal found that no act of Public Works and Government Services Canada (“PWGSC”) in procurement process precluded complainant from submitting bid. Crown’s application for judicial review granted. Amount of costs awarded to Crown should not be reduced or limited because complainant did not oppose consolidated application. Crown not relieved of normal burden on applicant to produce record, prepare memorandum of fact and law, and appear at hearing to make submissions. Having initiated complaint proceedings, complainant bore risk that tribunal’s determinations might be successfully challenged and that Crown might be awarded costs. Risk did not disappear when complainant decided not to defend tribunal’s determination.

Enterasys Networks of Canada Ltd. v. Department of Public Works and Government Services (June 20, 2011, F.C.A., Blais C.J., Sharlow and Mainville JJ.A., File No. A-264-10; A-312-10; A-321-10) 204 A.C.W.S. (3d) 899 (18 pp.).

Crown

PRIVILEGE

Informer privilege did not apply to Canadian Security Intelligence Service human sources

This was appeal from Federal Court Judge’s decision ordering disclosure of documents that were allegedly sensitive and potentially injurious. Appeal allowed. Three-prong test to be applied was set out in R. v. Ribic (2003), 185 C.C.C. (3d) 129 (F.C.A.). Judge must first determine whether information sought to be disclosed was relevant to proceedings in which it was intended to be used. If information met relevancy test judge must determine whether disclosure of information would be injurious to international relations, national defence or national security. If judge was satisfied that disclosure of sensitive information would result in injury judge must determine whether public interest in disclosure outweighed public interest in non-disclosure. Informer privilege did not apply to Canadian Security Intelligence Service human sources, as that would be contrary to s. 38 of Canada Evidence Act and express will of Parliament. However, in applying Ribic test judge either discounted evidence of injury or did not give it weight it deserved. Judge committed palpable and overriding error and disclosure order was set aside.

Canada (Attorney General) v. Kalifah
(June 13, 2011, F.C.A., Blais C.J., Letourneau and Trudel JJ.A., File No. A-428-10) 203 A.C.W.S. (3d) 771 (32 pp.).

Civil Procedure

COSTS

No special reasons in case justifying award of costs

Appellant was successful in appealing judgment dismissing application for judicial review of decision under Immigration and Refugee Protection Act (Can.). No submissions on costs appeared in memorandum of fact and law. No submissions on costs were made at hearing. Judgment on appeal and reasons for judgment were silent on costs. Appellant brought motion for order granting costs on solicitor-and-client basis. Motion was dismissed. Motion for costs was subject to Rule 22 of Federal Court Immigration and Refugee Protection Rules (Can.), which precluded award of costs in absence of special reasons. There were no special reasons in case justifying award of costs in favour of appellant.

Ndungu v. Canada (Minister of Citizenship and Immigration)
(June 21, 2011, F.C.A., Sharlow, Dawson and Layden-Stevenson JJ.A., File No. A-501-09) 204 A.C.W.S. (3d) 31 (11 pp.).
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