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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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Aboriginal Peoples


Department of Fisheries and Oceans met duty to consult

Authorization was issued pursuant to ss. 32(2)(c) and 35(2)(b) of Fisheries Act and permitted impacts to fish and fish habitat arising from construction of hydro-electric generating station proposed by NE. Applicant members of First Nation community council brought application for judicial review to challenge decision of Minister of Department of Fisheries and Oceans (DFO) to issue authorization to NE. Application dismissed. Duty to consult was met and minister’s decision to issue authorization was reasonable. Process set out in Regulatory Phase Protocol was adequate to meet Canada’s duty to consult, was reasonable and was followed by DFO. While DFO’s response may have been less than perfect, perfection was not required so long as reasonable efforts have been made to consult and accommodate and if result was within range of possible, acceptable outcomes which were defensible in respect of facts and law, there would be no basis to intervene. While applicants were not satisfied with many of Canada’s responses, Minister’s decision to issue authorization was ultimately reasonable.
Nunatukavut Community Council Inc. v. Canada (Attorney General) (Aug. 18, 2015, F.C., Cecily Y. Strickland J., File No. T-1339-13) 260 A.C.W.S. (3d) 651.

Official Languages


Canada Revenue Agency did not violate employee’s right to work in language of choice

Bilingual francophone employee of Canada Revenue Agency (CRA) dealt with call from anglophone. He sent note in French to other bilingual francophone employee. Superiors required him to re-write note in English in accordance with CRA policy requiring use of taxpayer’s preferred language. Employee brought complaint before Official Languages Commissioner. Commissioner found CRA policy reasonable. Employee sought order stating that CRA violated his right to work in language of choice and requiring CRA to review policy to respect rights of its employees. Application dismissed. Since impossible to reconcile service language rights under Part IV and workplace language rights under Part V, Part IV of Official Languages Act took precedence. CRA took all reasonable measures to create and maintain work environment conducive to the effective use of both official languages by its call agents. All other parts of CRA computer systems accessible in both official languages for call agents and only “notepad” or logs to be written by call agents in language of taxpayer. Transfer of calls proposed by employee would entail delays for anglophone callers and thus unequal service.
Tailleur c. Canada (Procureur général) (Oct. 30, 2015, F.C., Denis Gascon J., File No. T-1444-13) 260 A.C.W.S. (3d) 613.

Constitutional Law


Charter does not provide positive right to refugee protection

Foreign nationals were citizens of Afghanistan. Officer found principal foreign national was senior official in Afghan government from 1995 to 1997, which overlapped with rule of Taliban, regime designated by minister pursuant to s. 35(1)(b) of Immigration and Refugee Protection Act. Given this determination, officer found foreign national and his family inadmissible by operation of s. 42 of act. Foreign national applied for judicial review. Application dismissed. There was no merit in foreign national’s contention that he was forced out of government employment by Taliban in 1996. There was ample evidence from which officer could conclude that principal foreign national was in service of government until August 1997 and this finding of fact was reasonable. Finding that individual is or was senior member of public service of government described in s. 35(1)(b) is sufficient for finding of inadmissibility. Officer was not required to consider whether foreign national was complicit in Taliban regime. Officer was only required to consider whether foreign national was senior official of that regime within meaning of s. 16 of Immigration and Refugee Protection Regulations. Officer adequately assessed whether foreign national’s service satisfied meaning of prescribed senior official. No procedural fairness arose from failure to disclose poison pen e-mail alleging that foreign national assisted Taliban as there was no indication officer relied on this e-mail in decision. Section 7 of Canadian Charter of Rights and Freedoms was not engaged in present case as Charter does not provide positive right to refugee protection. Unavailability of refugee protection to person facing removal to risk of harm will not violate s. 7 where other protections are available. Even if s. 7 were engaged by finding of inadmissibility, foreign nationals could seek ministerial relief from this finding pursuant to s. 42.1(1) of act.
Tareen v. Canada (Minister of Citizenship and Immigration) (Nov. 6, 2015, F.C., Robin Camp J., File No. IMM-309-15) 260 A.C.W.S. (3d) 563.

Industrial and Intellectual Property


Word “Fusion” was fairly common and suggestive dictionary word

D Ltd. was flooring company that registered trademarks FUSION FORCE and FUSION PATCH in association with adhesives for flooring. D Ltd. also claimed use of several common law trademarks containing word “Fusion” in association with adhesives and grout for flooring. C Ltd. specialized in tile and stone installation. Less than one month after D Ltd. registered its trademarks, C Ltd. registered four FUSION PRO trademarks, three of which had design. C Ltd.’s trademarks were registered in association with grout for flooring. D Ltd. brought application for order expunging C Ltd.’s trademarks from register on basis of likelihood of confusion. Application dismissed. None of C Ltd.’s trademarks were likely to be confusing with D Ltd.’s registered or common law trademarks. D Ltd.’s trademarks did not have inherent distinctiveness. Word “Fusion” was fairly common and suggestive dictionary word. Other entities used word “Fusion” in flooring business in Canada. Evidence of acquired distinctiveness was at best very thin. Use of registered trademarks by two affiliates could not be considered under s. 50(1) of Trademarks Act due to lack of evidence of licensing arrangements or D Ltd.’s control over character or quality of goods using trademarks. Common control between companies through parent company was insufficient to demonstrate control. Such uncontrolled use of “Fusion” trademarks by D Ltd.’s affiliates arguably diminished trademarks’ alleged distinctiveness. C Ltd.’s trademarks were inherently stronger than D Ltd.’s since grout had no adhesive or “joining” properties suggested by word “Fusion”. C Ltd. also had strong sales and engaged in advertising. Parties’ wares were not essentially and primarily same. D Ltd. had not used its trademarks in association with grout. Parties did not primarily target same types of customers and did not operate at same trade level.
Distribution Prosol PS Ltd. v. Custom Building Products Ltd. (Oct. 15, 2015, F.C., Denis Gascon J., File No. T-874-14) 260 A.C.W.S. (3d) 349.

Civil Procedure


Action for breach of fiduciary duties and treaty obligations was not certified

Between 1871 and 1921 Canada negotiated 11 treaties with various First Nations. Treaties provided Canada with large tracts of land in exchange for promises made to First Nations. Canada agreed to pay annual annuity to each member of Treaty Bands. In 1875 amount of annuity payments in first two treaties was increased from $3 per person to $5 per person. Plaintiffs alleged that Canada had not adjusted amount of annuity payments in any of treaties since that time and, as result, annuity payments had been reduced in value to point that they no longer contributed to welfare of individual recipients. Plaintiffs claimed that provisions in treaties that provided for annuity payments entitled recipients to amount that was to be annually adjusted to reflect inflation and changes in purchasing power in order to maintain value that was equal to its buying power at time treaty was made. Plaintiffs claimed Canada was in breach of obligations under treaties and its fiduciary duties and sought damages and compensation in amount equal to present value of losses sustained by individual beneficiaries as result of Canada’s failure to adjust annuity payments over time. Plaintiffs brought motion to certify action as class proceeding. Motion dismissed. Plaintiffs pleaded two causes of action, breach of treaty obligations and breach of fiduciary duty. It was not plain and obvious that plaintiffs had no standing such that claim could not succeed as class action. It was not plain and obvious that pleadings did not disclose reasonable cause of action for breach of treaty if it was intention of parties at time treaties were signed that annuity would provide certain level of comfort to Indians and adjustment clause was not negotiated because parties did not foresee that purchasing power of annuity might be significantly eroded. It was not plain and obvious that pleadings did not disclose reasonable cause of action for breach of fiduciary duty to beneficiaries of annuity payments. Pleadings disclosed reasonable cause of action. There was identifiable class of two or more persons. However, plaintiffs failed to establish that there were common issues or facts that related to all individual members of proposed class, given differences in treaties. Treaty interpretation was fact driven and must be done on treaty-by-treaty basis. Representative action might be more appropriate procedure. Neither plaintiff was appropriate representative.
Horse Lake First Nation v. R. (Oct. 15, 2015, F.C., Russel W. Zinn J., File No. T-1784-12) 260 A.C.W.S. (3d) 221.


Refugee status

Minister’s position would work against clearly stated policy of family unity

Foreign national was citizen of Iran who became permanent resident of Canada upon her arrival in country on June 13, 2006. Foreign national was dependent of her husband, who was determined to be Convention refugee by visa officer overseas as he had well-founded fear of persecution based on political opinion. Under policy of family unity, foreign national, her husband, and their son became members of Convention Refugees Abroad class and were accepted without assessment. Foreign national returned to Iran on two occasions and minister sought cessation of her Convention refugee status on basis of s. 108(1)(a) of Immigration and Refugee Protection Act for voluntarily re-availing herself of protection of Iran. Refugee Protection Division panel concluded that it did not have jurisdiction to consider minister’s application to cessate refugee status of respondent pursuant to s. 108 of protection act because panel found that foreign national was not Convention refugee as contemplated in s. 95(1)(a) of act. Minister applied for judicial review on threshold jurisdiction issue of whether phrase “has been determined to be Convention refugee” in s. 95(1)(a) of act applied to foreign national as only then would RPD have jurisdiction to cessate her refugee status under s. 108(1) of act. Minister contended that foreign national was deemed to have been so determined by virtue of her acceptance in Convention Refugee Abroad class. Application dismissed. Chapter 10.2 of Citizenship and Immigration Canada processing manual OP 5 states that family members accompanying principal applicant who has been determined to be Convention refugee “derive their refugee status” from principal applicant. However, OP 5 does not have force of law and merely suggests that foreign national has refugee status, and does not say she “has been determined to be Convention refugee” as required by s. 95(1)(a) of act. It would be nonsensical to consider change to foreign national’s status in Canada simply because she visited a country in which her husband was found to be in danger, but in which she never claimed to be in danger. If foreign national’s refugee status were cessated, she would face loss of her permanent resident status under s. 46(1)(c.1) of act with all of the consequences that could have on her and her family. Applicable statutory and regulatory provisions would have to be clearer in order for minister’s position to prevail. Minister’s position would work against clearly stated policy of family unity.
Canada (Minister of Citizenship and Immigration) v. Esfand (Oct. 21, 2015, F.C., George R. Locke J., File No. IMM-1133-15) 259 A.C.W.S. (3d) 738.

Industrial and Intellectual Property


Minister implemented import ban motivated by improper purpose

Main applicant was largest pharmaceutical manufacturer in Canada and it purchased and imported into Canada active pharmaceutical ingredients and finished dosage form pharmaceutical products from other applicants, affiliated Indian companies. United States Food and Drug Administration inspected Indian applicants’ facilities and found they were non-compliant with good manufacturing practices requirements and it issued import alert on all products coming from Indian applicants except for products that were medically necessary. Newspaper began publishing articles and editorials that were critical of Health Canada and respondent Minister of Health. Minister imposed import ban preventing importation of drug products into Canada from Indian applicants’ manufacturing facilities and it also amended main applicant’s establishment licences to prohibit import of all products except those deemed medically necessary. Applicants applied for judicial review. Application granted. Minister acted for improper purpose and did not act in accordance with duty of procedural fairness when import ban was implemented and establishment licences were amended. There was no evidence that minister was concerned with immediate health risks posed by products subject to ban or that situation was highly urgent such that level of procedural fairness should be less. Regulatory regime and circumstances suggested that procedural fairness should have been given prior to import ban being implemented. Minister failed to provide any notice and denied main applicant opportunity to be heard before unilaterally imposing import ban. Minister did not act in accordance with natural justice. Applicants had not met burden of proving that minister demonstrated reasonable apprehension of bias from lack of independence or impartiality. Minister’s actions were ultra vires. Minister used proper statutory provision to add terms and conditions to main applicant’s establishment licences but in circumstances provision should include procedural fairness granted to establishment licence holders throughout rest of regulatory scheme, which required notice and reasons for addition of terms and conditions. Section 2(e) of Canadian Bill of Rights did not apply in circumstances. As minister implemented import ban that was motivated by improper purpose and without providing main applicant with procedural protections required by law, decision was not reasonable or correct and it must be quashed. Minister acted without jurisdiction in releasing statements to media and statements were to be retracted.
Apotex Inc. v. Canada (Minister of Health) (Oct. 14, 2015, F.C., M.D. Manson J., File No. T-2223-14) 259 A.C.W.S. (3d) 580.

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