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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


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.

Human Rights Legislation

Human Rights Commission/Tribunal

Investigator failed to conduct sufficiently thorough investigation

Employee filed complaint with Canadian Human Rights Commission (CHRC) alleging she was harassed and discriminated against in workplace by employer’s chief of staff on basis of her age, sex, and marital status. Investigator found alleged harassment had occurred based on inappropriate behavior by chief of staff. CHRC released investigation report recommending that Tribunal commence inquiry into complaint. Employer brought application for judicial review of decision of CHRC to request inquiry into complaint. Application granted. Investigator failed to conduct sufficiently thorough investigation, rendering it clearly deficient. Investigator failed to interview chief of staff or any other employees who were still working for employer, or interview individuals present at meeting involving employee and chief of staff at which it was alleged harassment took place. Investigator did not turn mind to question of whether harassment had been reported by employee to her supervisors, or whether employee’s anxiety and emotional distress resulted from alleged harassment, or if there were adverse consequences of unrelated issues. Matter was to be returned to investigator for redetermination.
Southern Chiefs Organization Inc. v. Dumas (July 20, 2016, F.C., Alan S. Diner J., T-1612-15) 268 A.C.W.S. (3d) 831.


Public service

Grievance procedure provided only forum in which plaintiff could seek relief

Plaintiff was former federal public servant. During his employment plaintiff complained about his performance rating. Plaintiff asserted he and Assistant Deputy Minister (ADM), Human Resources verbally agreed that his performance rating would be changed for better and he would receive same performance rating for next year if he received positive reviews. In return plaintiff was to resign from public service by specified date. ADM, Human Resources denied agreeing to terms. Plaintiff’s performance rating did not change. Plaintiff’s grievance was denied. Plaintiff referred grievance to Public Service Labour Relations Board. Board denied grievance and rejected allegation that plaintiff’s treatment amount to bad faith or disguised discipline. Plaintiff’s application for judicial review was granted and redetermination of grievance resulted in favourable decision. Plaintiff filed application for judicial review asserting that decision-maker failed to deal with allegations of bad faith and damage to his reputation. Plaintiff claimed damages asserting actions of official in processing his grievance constituted misfeasance in public office. Defendant asserted court did not have jurisdiction to adjudicate claim. Defendant brought motion to strike statement of claim. Motion granted. Claim was struck in its entirety without leave to amend. Grievance procedure in Public Service Labour Relations Act (Can.) provided only forum in which plaintiff could seek relief. Plaintiff’s bald allegations of bad faith, malice and corruption did not bring his claim outside scope of grievance process.
Price v. Canada (Attorney General) (June 10, 2016, F.C., Simon Fothergill J., T-87-16) 268 A.C.W.S. (3d) 866.

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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?
Yes, this will remind trustees of the potential exposure of significant awards being made against them personally.
No, it’s unlikely this ruling will dissuade executors from engaging in unreasonable conduct during litigation.