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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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Federal Court has jurisdiction to rule upon whether a proceeding subsists

Allergan brought action in Federal Court against Apotex for patent infringement. Parties disagreed on whether settlement reached. Allergan’s motion for order enforcing settlement was granted. Federal Court relied on initial exchange between the parties, suggesting that agreement was essentially in place following these communications. Following initial exchange, there was 23-month exchange of emails, including number of draft Minutes of Settlement. Discussions broke off but Federal Court found that email sent by counsel for Allergan on February 24, 2014 accepted terms contained in draft Minutes of Settlement sent by Apotex on January 13, 2014. Federal Court concluded that although parties did not place signatures on formal agreement, they had reached agreement on all essential terms. Apotex’s appeal was allowed. Federal Court has jurisdiction to determine whether patent infringement action has been settled and, if so, to enforce the settlement agreement. When contract law issue before the Court is part and parcel of matter over which Federal Court has statutory jurisdiction, Federal Court has jurisdiction over the contract. Federal Court also has, as part of its plenary power, jurisdiction to rule upon whether or not a proceeding subsists. Existence or non-existence of settlement agreement affects status of proceedings before the court.
Apotex Inc. v. Allergan, Inc. (May. 18, 2016, F.C.A., M. Nadon J.A., Johanne Trudel J.A., and David Stratas J.A., A-204-15) Decision at 252 A.C.W.S. (3d) 433 was reversed. 268 A.C.W.S. (3d) 548.

Labour Relations


Adjudicator had duty to apprise parties that interpretation not contemplated by them was being considered

Applicant grievor was required by employer to travel internationally to carry out systems repairs on ship. Employer paid applicant for hours travelled at double time rate, under clause 17.03(a) of collective agreement governing compensation for days on which employees travelled but did not work, leading to total amount of pay equating to 22 hours straight time. Applicants argued that he was entitled to pay for 15 additional hours under clause 17.03(d) of collective agreement, governing travel pay where employees travelled overnight and no sleeping accommodation was required, while employer believed he was only entitled to seven more hours. Applicants’ grievance was dismissed on basis that applicant was only entitled to compensation under clause 17.03(d) and not under clause 17.03(a) of collective agreement. Applicants applied for judicial review. Application granted. Adjudicator ignored parties’ common interpretation of clause 17.03(a) of collective agreement and shared view that issue to be determined was how much additional compensation he could receive under clause 17.03(d) of agreement. Adjudicator had duty to apprise parties that he was considering interpretation of clause 17.03 of collective agreement that neither party had contemplated. Applicants and employer had no indication whatsoever that their common and accepted interpretation could be questioned. Procedural fairness dictated that they should have been put on notice and afforded opportunity to address issue and adduce evidence to counter adjudicator’s interpretation of clause 17.03(d) of collective agreement. Since collective agreement governed relationship between parties, it was critical that parties be afforded opportunity to be heard since they must live by terms of their contract. Both parties had vital interest in adjudicator’s interpretation of their collective agreement. Adjudicator came to different interpretation of clause 17.03(d) without any input from parties on how that interpretation could possibly impact on application of clause 17.03 generally. As matter of procedural fairness, parties should have been given opportunity to present arguments and adduce evidence on such determinative issue.
Arsenault v. Canada (Attorney General) (June 14, 2016, F.C.A., Wyman W. Webb J.A., A.F. Scott J.A., and Yves de Montigny J.A., A-436-15) 268 A.C.W.S. (3d) 431.


Judicial review

Certified questions did not comply with s. 74 of Immigration and Refugee Protection Act (Can.)

Applicants came from Hungary, claiming refugee protection on basis of persecution based on their Roma ethnicity. Refugee Protection Division of Immigration and Refugee Board rejected claim, concluding that discrimination suffered by applicants did not reach level of persecution and that applicants did not rebut presumption that state protection was adequate. Applicants’ application for judicial review was dismissed. Applicants appealed on two certified questions. Appeal dismissed. First question, as to whether Board erred if it concluded state protection was adequate while failing to determine operational adequacy of protection measures introduced in democratic state, should not have been certified. It was not determinative of issue because, as application judge found, Board did consider adequacy of state protection. First certified question arose from application judge’s incorrect interpretation of current jurisprudence as potentially imposing onus on Board to demonstrate operational adequacy of recent measures adopted by Hungary to protect Roma citizens. Cases did not stand for that principle. Question was somewhat theoretical and more in nature of reference, which was prohibited. It was also not of general importance because law on this issue was well settled. Second question, whether refugee protection claims were required to complain to policing oversight agencies in democratic state as requirement of assessing state protection, also should not have been certified. Requirement of going to oversight agency in specific country was heavily fact driven and so was not of general application. There was no legal question to be answered. Board’s reasons pertaining to oversight agencies were obiter dicta because there was finding of fact that police’s response was adequate, and so certified question did not arise in this case. Certified questions did not comply with requirements of s. 74 of Immigration and Refugee Protection Act (Can.).
Mudrak v. Canada (Minister of Citizenship and Immigration) (June 14, 2016, F.C.A., David Stratas J.A., Wyman W. Webb J.A., and A.F. Scott J.A., A-147-15) Decision at 249 A.C.W.S. (3d) 848 was affirmed. 268 A.C.W.S. (3d) 408.



Application for judicial review of pardon revocation was granted

Accused pleaded guilty to driving with excessive alcohol. As result, Parole Board revoked pardon granted to accused in 2011 for conspiring in 2007 to export pseudoephedrine without export permit on ground that he was no longer of good conduct. Accused’s application for judicial review of Board’s decision, challenging its legality was dismissed. Accused appealed. Appeal allowed. Judge’s decision was annulled, accused’s application for judicial review was granted, and matter was to be referred to Board for reconsideration. Board could not have reasonably concluded that there was convincing evidence that accused ceased to behave well because his behaviour has required intervention of police forces and court for offence under s. 255 of Criminal Code. Board’s conclusion was more surprising when one considered that Board had in its file no indication of any particular circumstances whatsoever regarding police involvement in matter, and that accused pleaded guilty and therefore did not abuse judicial resources. Board did not conduct investigation and did not try to get details about circumstances surrounding commission of offence, to establish whether in fact accused’s behaviour was able to endanger lives of others. Letter inviting accused to comment was not precise enough to let him know he could and/or should provide all explanations of circumstances surrounding commission of offences, as well as his good behaviour during nine previous years. In absence of such information on file, Board could not concluded there existed convincing evidence that accused’s behaviour could be associated with marked disregard for public safety and that he endangered life of public. Board should have conducted particularized analysis of circumstances surrounding commission of offence and any other information related to accused’s lifestyle. 

Y. (M.) c. Canada (Procureur général) (June 7, 2016, F.C.A., Johanne Gauthier J.A., A.F. Scott J.A., and Yves de Montigny J.A., A-371-14) Decision at 116 W.C.B. (2d) 31 was reversed. 131 W.C.B. (2d) 49. 

Administrative Law

Freedom of information

Certain requested records were protected by litigation privilege 

Document requester and his paper mill were charged with 13 violations of Fisheries Act (Can.). All charges were ultimately declared nullities. Requester and company commenced action against federal government and others alleging fraud, conspiracy and perjury. Requester submitted request under Access to Information Act (Can.) (AIA) for all documents from, to, or created by Crown prosecutor, G. Federal government provided number of documents but claimed various exemptions, including litigation privilege. Requester’s application for judicial review was dismissed by Federal Court (FC) judge who held, among other things, that certain portions of documents were protected by litigation privilege. Requester appealed. Appeal dismissed. FC judge did not err in deciding that certain records were protected by litigation privilege. Majority of withheld records (or portions thereof) were communications either to or from counsel with Department of Justice (DOJ) or law firm defending requester’s civil claim which discussed civil litigation. Since civil lawsuit was currently before court, litigation was still alive and litigation privilege still existed and applied. Records created in course of prosecution but intertwined with discussions of civil claim were also protected from disclosure by litigation privilege. Exemptions claimed under s. 23 of AIA were correctly invoked and DOJ reasonably exercised discretion not to disclose withheld portions. 

Blank v. Canada (Minister of Justice) (June 23, 2016, F.C.A., Eleanor R. Dawson J.A., C. Michael Ryer J.A., and Yves de Montigny J.A., A-378-15) Decision at 256 A.C.W.S. (3d) 505 was affirmed. 268 A.C.W.S. (3d) 2. 


Income tax

No basis for rejecting taxpayer’s use of mark to market accounting

Taxpayer traded in purchased and written foreign exchange option contracts to reduce exposure to foreign currencies. Taxpayer included option contracts in income, valued at end of taxation year on mark to market basis that recognized changes in market value as gain and loss, claiming losses exceeding $91 million. Minister assessed taxpayer under Income Tax Act (Can.) on basis that contracts should be included and valued only when finally realized. Taxpayer’s appeal was allowed in part, on basis that realization principle applied except for its purchased foreign exchange option contracts that were found to constitute inventory, and Crown was awarded costs. Taxpayer appealed. Appeals allowed. Tax Court judge’s finding that realization was overarching principle that applied in absence of Act provision authorizing or requiring application of different method directly contradicted precedents establishing that other methods of computing income could be used where they provided more accurate picture of income. Taxpayer made prima facie demonstration that mark to market accounting provided accurate reflection of income and Crown did not show that realization produced better picture of taxpayer’s income. There was no basis for rejecting taxpayer’s use of mark to market accounting in computing income. There was no doubt that Act allowed intangible property to be treated as inventory or that, because written options only embodied liability, they were not “property” and could not form part of “inventory”. Requirement that qualifying property be “held for sale” had to be read into definition of “inventory” under governing authority, such that taxpayer’s foreign exchange options did not qualify as inventory as they were not for sale. Purchased and written options impacted on computation of income and had to be recognized in service of goal under s. 9 of Act to provide accurate picture of that income. Taxpayer was entitled to use mark to market method of accounting to compute income derived from foreign exchange option contracts and was entitled to costs before Tax Court and appeal.
Kruger Inc. v. R. (June 22, 2016, F.C.A., Marc Noël C.J., A.F. Scott J.A., and Yves de Montigny J.A., A-296-15, A-195-16) Decisions at 252 A.C.W.S. (3d) 868 and 262 A.C.W.S. (3d) 532 were reversed. 267 A.C.W.S. (3d) 485.


Income tax

Canada Revenue Agency officials did not act maliciously and unlawfully

Accused was payroll bookkeeper enlisted by disabled patients to make proper tax deductions. Accused’s clients had accrued liabilities to Canada Revenue Agency (CRA) exceeding one million dollars. Accused was charged under Criminal Code (Can.) with fraud, making false or deceptive statements in tax return, and tax evasion. Accused brought action against CRA for damages for negligence, breaches of Canadian Charter of Rights and Freedoms, misfeasance in public office, defamation, and malicious prosecution. Federal Court judge dismissed action on basis that none of causes of action were established. Judge held that, because prosecution of accused had not been concluded, tort of malicious prosecution was not available to him. Judge found no evidence to support pleading of defamation. Judge held that CRA officials did not act maliciously and unlawfully or violate accused’s Charter rights when they tried to collect payroll remittance arrears from him. Judge found CRA’s conduct was fair, responsible, reasonable and lawful and was sensitive to concern that its actions not disrupt provision of respite care to those who needed it. Accused appealed. Appeal dismissed. Judge did not make any errors, reasons were clear, and allegation of bias was dismissed. Judge’s comments were instances of good trial management, not bias. If there were instances of bias or unfairness, accused’s counsel should have objected at initial hearing. There were no grounds to set aside judge’s costs award.
Hennessey v. R. (June 15, 2016, F.C.A., Johanne Trudel J.A., David Stratas J.A., and Richard Boivin J.A., A-215-14) Decision at 242 A.C.W.S. (3d) 827 was affirmed. 267 A.C.W.S. (3d) 479.

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