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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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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

Pleadings

Amendment

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.).

Tax

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

Patents

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.).

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.).
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