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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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Examination of witnesses


Recalling expert witness to testify amounted to case-splitting

Plaintiffs’ expert witness L supplied report and testimony on effect of use of lake as reservoir for hydroelectric generation and water control purposes on First Nation. Crown provided report from expert witness R. After R was qualified as expert, Crown sought to have additional documents entered as exhibits. Plaintiffs objected on grounds documents did not form part of R’s report. R was permitted to testify on additional documents. At conclusion of R’s testimony, plaintiffs renewed objection to additional documents and indicated wish to recall L to testify. Plaintiffs were directed to have L prepare supplementary report outlining evidence to be tendered. Plaintiffs brought motion for order permitting recall of L as witness. Motion dismissed. Recalling L to testify amounted to case-splitting. L’s proposed testimony addressed matters not currently in evidence or addressed matters L had every opportunity to address in initial reports or oral evidence. Alleged inaccuracies in data presented by R or in additional documents could be addressed by counsel. Certain proposed corrections were irrelevant and unnecessary. R’s report was delivered years ago and L previously responded to it.
Lac Seul Band of Indians v. Canada (2017), 2017 CarswellNat 213, 2017 FC 75, Russel W. Zinn J. (F.C.).

Immigration and Citizenship


Temporary entry (visitors)

It was not understandably clear why visa officer denied study permit

Applicant previously studied in Canada and was honour student at college. Same college had accepted applicant’s application for resumption of his studies. Applicant applied for study permit pursuant to s. 11(1) of Immigration and Refugee Protection Act, which was denied by visa officer based on overall unreasonableness of applicant’s plan of studies, strong personal ties to Canada, and previous immigration history. Applicant applied for judicial review. Application granted. Applicant provided evidence of establishment of his parents in Greece. Applicant’s family resided in Greece, his ties there remained strong, and only former friends were living in Canada. Applicant’s study plans encompassed logical trajectory for study permit. It was not understandably clear why visa officer denied study permit, and without more specific clarification, officer’s decision was not reasonable.
Tsaraosi v. Canada (Minister of Citizenship and Immigration) (2017), 2017 CarswellNat 55, 2017 FC 59, Michel M.J. Shore J. (F.C.).


Federal and provincial pension plans

Federal pension plans

There was no erroneous advice or administrative error

Pension recipient obtained Canada Pension Plan (CPP) disability benefits and Disabled Contributor’s Child Benefits (DCCB) in 1991 when he had three young children. Recipient had fourth child in 1993 but did not apply for benefits for this child until 2011. Recipient’s application for DCCB benefits for child was approved and he was provided with 11 months of retroactive DCCB benefits, which was maximum permitted under legislation. Recipient’s attempts to challenge this decision were unsuccessful. Delegate of Minister of Employment and Social Development Canada determined that no erroneous advice or administrative error had been made that resulted in denial of additional benefits. Second delegate made same determination. Recipient brought application for judicial review of delegate’s decision. Application dismissed. Delegate’s decision was not unreasonable. Recipient’s initial application kit clearly indicated that it was necessary to make written application for benefits for childre. Recipient’s complaint that he did not receive sufficient advice was not basis for relief under s. 66(4) of Canada Pension Plan. Recipient’s honest but mistaken understanding that he did not have to apply for benefits for youngest child did not entitle him to relief. There was no legal obligation on part of Employment and Social Development Canada to inform individuals of their entitlement to benefit or to remind recipients of their obligation to inform Department of any changes to status.
Consiglio v. Canada (Attorney General) (2016), 2016 CarswellNat 6262, 2016 FC 1123, Anne L. Mactavish J. (F.C.).


Availability of injunctions

Allegations of inducement constituted serious issue

Plaintiffs were TV broadcasting companies and TV broadcast distribution undertakings while defendants were vendors of TV set-top boxes with pre-loaded applications. Plaintiffs learned that defendants’ devices could be used to access protected content produced and/or retransmitted by plaintiffs using online streaming websites, and that defendants advertised their products as way to access free television content and avoid cable bills. Plaintiffs brought unspecified action against defendants. Plaintiffs brought motion for interlocutory injunction essentially restraining defendants from engaging in conduct harmful to plaintiffs’ legitimate intellectual property interests. Motion granted. Plaintiffs demonstrated serious issue to be tried. Sections 2.4, 3, and 21 of Copyright Act gave plaintiffs exclusive rights to communicate their programs to public by telecommunication via television broadcast. Plaintiffs also had sole right to fix their communication signals and to reproduce any fixation thereof. Devices marketed, sold, and programmed by defendants enabled consumers to obtain unauthorized access to content for which plaintiffs owned copyright. This was not case where defendants merely served as conduit but rather deliberately encouraged consumers and potential clients to circumvent authorized ways of accessing content. Statutory defence provided in s. 2.4(1)(b) of Act did not apply to defendants who went above and beyond selling simple “means of telecommunication”. Allegations of inducement constituted serious issue since defendants marketed themselves to consumers specifically on basis that their “plug-and-play” set-top boxes made it easy to eliminate need for cable subscription. Plaintiffs also had strong prima facie case that devices sold by defendants were used to access content that might contravene s. 9(1)(c) of Radiocommunication Act.
Bell Canada v. 1326030 Ontario Inc. (2016), 2016 CarswellNat 4944, 2016 CarswellNat 4945, 2016 FC 612, Danièle Tremblay-Lamer J. (F.C.).

Industrial and Intellectual Property


Opposition Board rejected opposition to trademark application

Applicant opposed respondent’s trademark application. Trademarks Opposition Board rejected applicant’s opposition to trademark application by respondent. Board rejected assertion that respondent’s proposed mark was not distinctive. Applicant asserted that Board’s decision was unreasonable because evidence of multiple restaurants using marché or market as part of their name meant that mark could not reasonably be seen as distinctive. Applicant appealed. Application dismissed. Decision was justifiable, transparent, and intelligible, and fell within range of possible, acceptable outcomes that were defensible in respect of facts and law. Board’s decision was principally focused on whether applicant met its initial evidentiary burden to adduce sufficient admissible evidence from which it could reasonably be concluded that facts alleged to support each ground of opposition existed. It was open to and reasonable for Board to conclude that evidence offered by applicant was not sufficient to show that mark lacked distinctiveness such that it was incapable of functioning as source identifier for respondent’s services. Although Board interspersed its distinctiveness analysis with certain aspects of its descriptiveness analysis, it did not render its decision unreasonable when viewed as whole.
Richtree Market Restaurants Inc. v. Mövenpick Holding AG (Sep. 15, 2016, F.C., Keith M. Boswell J., T-1889-15) 270 A.C.W.S. (3d) 838.

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.

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An estate trustee who took an ‘egregious' position in litigation has been ordered to personally pay more than $140,000 in costs. Will this ruling serve as an appropriate caution to executors on how they conduct themselves in litigation?
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