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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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Industrial and Intellectual Property


Owner was entitled to declaration that claims of patent were not invalid

Plaintiff patent owner BPA and licensee B Inc. owned patent for micronized, uncoated, and rapidly dissolving oral contraceptive pill with low hormone dose. Defendant generic drug companies C Co. and A Inc. sold oral contraceptive pills with similar characteristics. Owner brought action for declaration of infringement by C Co. and A Inc. and related relief. C Co. and A Inc. brought counterclaims for declarations that claims were invalid. Action allowed; counterclaims dismissed. Claims were valid and infringed by C Co. and A Inc.. Owner was entitled to declaration that three claims of patent were not invalid based on grounds of obviousness, anticipation, overbreadth, insufficiency or ambiguity of specification, or inutility. Owner was entitled to declaration that three claims of patent had been infringed, either directly or by inducing infringement, by A Inc. and C Co.’s sale, importation, offering for sale and manufacture of their oral contraceptive pills. Owner was entitled to order enjoining A Inc. and C Co. from manufacturing, using, and selling oral contraceptive tablets that infringed claims. Owner was entitled to order directing A Inc. and C Co. to deliver up or destroy under oath, all articles that would offend injunction. Issue of damages or accounting of profits was to be heard in second phase of trial.
Bayer Inc. v. Cobalt Pharmaceuticals Co. (Sep. 7, 2016, F.C., Simon Fothergill J., T-1379-13, T-1468-13, T-1368-14) 270 A.C.W.S. (3d) 837.

Aboriginal Peoples


First Nation was not denied procedural fairness by Tribunal’s determination

Complainant filed complaint under s. 7 and s. 10 of Canadian Human Rights Act. Canadian Human Rights Tribunal decision upheld complainant’s claim that First Nation denied her employment in its fishery over several years because she was woman and, excluded her from captaining fishing vessel based on her marital status because First Nation had dispute with her husband following his captaincy of vessel in 2007. First Nation’s practice was to deprive women of employment opportunities in fishery. First Nation sought order setting aside Tribunal’s decision and order setting aside portion of Tribunal’s decision in which it found that two of complainant’s complaints of retaliation were substantiated. First Nation brought applications for judicial review of Tribunal’s decision in discrimination decision and retaliation decision. Applications dismissed. Tribunal’s decisions were justifiable, transparent, and intelligible. First Nation was not denied procedural fairness by Tribunal’s determination to render decisions. Tribunal simply released one set of reasons on discrimination complaint and second set on retaliation complaint. Although this manner of proceeding was not best practice, because it could possibly prevent parties from negotiating remedy for complain because they might need entire outcome of matter determined before they could do so, but this was not case here because Tribunal explicitly retained jurisdiction over two complaints. Tribunal was at liberty to follow its own procedure to yield just and expeditious outcome with respect to each complaint following hearing, and it did so fairly. First Band’s alleged errors was nothing more than request for Court to reweigh and reassess evidence and outcomes before Tribunal.
Millbrook First Nation v. Tabor (Aug. 3, 2016, F.C., Keith M. Boswell J., T-887-15, T-1379-15) 270 A.C.W.S. (3d) 451.

Industrial and Intellectual Property


Applicant was entitled to statutory damages under Copyright Act (Can.)

Parties had settled prior instances where respondent infringed applicant corporation’s copyright in numerous computer programs, and injunction had been granted. Private investigator retained by corporation attended store where respondent offered to sell refurbished computer that included Windows 7 operating system, and he installed Microsoft Office, but no licence or DVD was provided for operating system or software. Private investigator attended store again and purchased refurbished computer with Windows 7 operating system and Microsoft Office, but he dealt with someone other than respondent. Corporation applied for relief, including damages for selling unlicenced copies of its programs. Application granted in part. Evidence established that respondent sold unlicenced copies of corporation’s programs on one occasion and infringed corporation’s copyright. Corporation was entitled to statutory damages under Copyright Act (Can.). Corporation was not awarded statutory maximum because conduct of respondent was not egregious, copyrights were only infringed on one occasion and awarding statutory maximum would amount to damages of $100,000, which was out of proportion to any profit made. Respondent failed to abide by terms of prior settlement agreements and with terms of prior injunction, and there is clear and compelling need to deter respondent from future infringing activities. Respondent was ordered to pay statutory damages of $10,000 for each infringement of corporation’s computer programs that were unlawfully copied and distributed, for total of $50,000. Punitive and exemplary damages were warranted based on respondent’s misconduct, need for denunciation and to deter him from any future infringement of corporation’s copyright in its computer programs. In circumstances, respondent was ordered to pay punitive and exemplary damages of $50,000.
Microsoft Corp. v. Liu (Aug. 19, 2016, F.C., Keith M. Boswell J., T-797-15) 270 A.C.W.S. (3d) 179.
Trade marks
There was no cause to reduce compensatory and punitive awards
Court accepted plaintiffs’ uncontradicted evidence with respect to four instances where counterfeit Chanel merchandise was offered for sale or sold in conventional retail store. Plaintiffs obtained judgment against LCK and 694. Plaintiffs’ action against SL was dismissed. Court granted declaratory relief confirming validity and ownership of Chanel trademarks; injunctive relief precluding defendants from continuing their infringing activities, and injunctive relief requiring delivery up and destruction of remaining infringing goods. SL’s appeal was allowed on limited grounds that there was ambiguity concerning SL’s involvement in one of instances. Summary trial motion was directed to be remitted to trial judge for redetermination in accordance with reasons. Court was to resolve ambiguity with respect to SL’s involvement in one of instances of infringement and re-determine quantum of damages. Findings, declarations, orders and condemnations made against corporate defendants and SL including compensatory damages award, punitive damages award and costs award were confirmed and remained unchanged. SL was jointly and severally liable with corporate defendants for infringement. In all respects and at all relevant times SL was personally liable of infringing activities that took place in business or at premises on all four instances. At all relevant times SL was controlling mind of corporate defendants. Corporate changes did not affect SL’s personal liability. SL continued to use property as her own and continued to control business. Motivation behind corporate changes and transfer of ownership alleged by SL was highly questionable and they were fraudulent. There were ample evidentiary base and compelling legal reasons to find SL personally liable of all four instances of infringement. There was no cause to reduce compensatory and punitive awards.
Chanel S. de R.L. v. Lam Chan Kee Co. (Aug. 30, 2016, F.C., Luc Martineau J., T-653-13) 270 A.C.W.S. (3d) 181.

Industrial and Intellectual Property


Copyright holders had right to have identity of subscriber revealed and disclosed

Copyright holders claimed that internet users had engaged in file sharing over internet, and thereby infringed copyright holders’ copyrights in several films. Applicants initiated proposed class proceeding claiming, amongst other things, declaratory and injunctive relief against subscriber of internet service provider (ISP), whose identity was presently unknown to them. Copyright holders brought motion for order compelling ISP to disclose any and all contact and personal information of subscriber associated with identified internet protocol address at various times and dates. Motion granted. Copyright holders adduced sufficient evidence to show that they had bona fide claim that unknown persons were infringing copyright in their films. Consequently, copyright holders had right to have identity of subscriber revealed and disclosed for purpose of pursuing their proposed class proceeding. Copyright holders were only entitled to disclosure by ISP of subscriber’s name and address as recorded in ISP’s records. Release of information was to remain confidential and not be disclosed to any other parties without further court order and could only be used by copyright holders in connection with their proposed class proceeding. ISP was entitled to payment of $100 per hour to assemble information and costs fixed at $500.
Voltage Pictures, LLC v. John Doe No. 1 (Jul. 28, 2016, F.C., Keith M. Boswell J., T-662-16) 269 A.C.W.S. (3d) 648.

Administrative Law


There was no concern about court encroaching into areas of executive or legislative policy

Minister of Health restricted importation of drugs from two of manufacturers’ facilities. Minster’s decision in issue varied terms and conditions of manufacturers’ drug and establishment licences in respect of facilities. Minister had since issued decision where it removed all terms and conditions on establishment licences for facilities. Manufacturers applied for judicial review. Application granted. Judicial review was moot, as decision and restrictions on import it imposed ceased to exist. There was no live controversy between parties. Court exercised discretion to hear matter on merits as there was still adversarial context, and outcome of judicial review might impact any action for damages brought by manufacturers related to import ban. Decision on merits would have practical effect on parties’ rights, which mitigated concerns over judicial economy. There was no concern about court encroaching into areas of executive or legislative policy.
Apotex Inc. v. Canada (Minister of Health) (Jun. 15, 2016, F.C., Michael D. Manson J., T-1653-15) 269 A.C.W.S. (3d) 602.

Civil Procedure


Applicant did not demonstrate that introduction of new evidence was in interest of justice

Corporate respondent entered into set of agreements to develop software with X. Applicant entered into series of employment relationships with corporate respondent and subsequently he and his company entered into contractual relationships with corporate respondent. Applicant claimed that he and X were joint authors and joint owners of copyright in software. Applicant claimed declarations and remedies related to alleged copyright infringement and infringement of moral rights. Application dismissed. Applicant sought leave to file additional affidavit in support of his application. Motion dismissed. While it wasn’t clear that all evidence was available to applicant when he swore his main affidavit, it was available when he filed his record and his requisition for hearing. There was no basis for court to be admitting this evidence on day of hearing. Applicant did not demonstrate that introduction of new evidence was in interest of justice and would assist court. Respondents would be prejudiced by admission of evidence.
Andrews v. McHale (June 3, 2016, F.C., Richard F. Southcott J., T-832-15) 269 A.C.W.S. (3d) 152.


Disqualification of arbitrator

Canada Labour Code was silent on issue of withdrawal of complaint

Employee filed complaint under Canada Labour Code alleging he was dismissed without cause from his employment as community support worker development coordinator with employer. Seven days of hearings took place over span of one year. By August 2014, adjudicator had all material necessary to render decision. Employer contacted adjudicator in May 2015 and on July 13, 2015 seeking decision but none was forthcoming. Adjudicator responded, noting that determination on merits was made some time ago, but that his reasons needed to be amplified given recent decision of Federal Court of Appeal. On July 14, 2015 employee withdrew complaint, intending to pursue civil action. Employer opposed withdrawal of complaint given that determination had already been made on merits. Adjudicator advised that he was functus officio and did not have jurisdiction to determine if employee could withdraw complaint. Employer brought application challenging adjudicator’s decision to accept employee’s withdrawal of his complaint. Application dismissed. Code was silent on issue of withdrawal of complaint, and did not explicitly convey whether or not adjudicator’s broad discretion to control its procedure conferred on adjudicator power to disallow unilateral withdrawal of complaint. In absence of direction on issue of withdrawal, employee was entitled to withdraw complaint by providing proper notice to adjudicator and ensuring affected parties were notified. Once employee had done so, adjudicator’s jurisdiction to act was exhausted. If employee pursued civil action, employer could raise forum shopping and issue estoppel with court.
Inter Tribal Health Authority v. Sinclair (June 1, 2016, F.C., Michael D. Manson J., T-1609-15) 269 A.C.W.S. (3d) 82.

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A Law Times column examines whether the Law Society of Upper Canada should change its name to the Law Society of Ontario, in light of different social changes, such as the Truth and Reconciliation Committee’s Calls to Action. Should LSUC change its name?
Yes, it’s time for LSUC to catch up with the times, and update its name.
No, the name of the LSUC is appropriate, and changing it would not accomplish much.