Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | APRIL 1, 2019 27 www.lawtimesnews.com Supreme Court of Canada Evidence CORROBORATION When required Suggestion that complainant contrived 911 call injected an allegation of ' fabrication' into hearsay analysis Accused was convicted of sexual assault and unlawful confinement arising out of incident at com- plainant's apartment. Accused began making sexual advances to- wards complainant and refused to leave or let her leave. Complainant called 911. Accused also threat- ened her with knife, and kissed her forcibly before complainant jumped off her balcony to escape. Complainant told her neighbours someone had attempted to stab her. At trial, complainant's reli- ability and credibility were central issues. Accused appealed. Appeal dismissed. Res gestae statements typically cannot be used as con- firmatory evidence but accused's suggestion that complainant con- trived 911 call "injected an allega- tion of 'fabrication' into hearsay analysis. While not traditional allegation of "recent fabrication" that could render prior consisted statements admissible, it engaged similar issues. Trial judge's analy- sis was directly responsive to ac- cused's submission and not to confirmatory weight of evidence. Further, complainant's statement to her neighbour immediately af- ter jumping off balcony that she had done so before someone was trying to stab her was admissible as part of res gestae. Trial judge made no error in relying on state- ment as confirmatory of com- plainant's account. Accused ap- pealed. Appeal dismissed. Court of Appeal's analysis was correct. R. v. Demedeiros (2019), 2019 CarswellAlta 271, 2019 Carswel- lAlta 272, 2019 SCC 11, 2019 CSC 11, Moldaver J., Gascon J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2018), 2018 CarswellAl- ta 1313, 2018 ABCA 241, Ronald Berger J.A., Peter Costigan J.A., and Frans Slatter J.A. (Alta. C.A.). Federal Court of Appeal Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans All grounds in application for leave to appeal were live once leave was granted Social Security Tribunal General Division denied applicant's claim for disability benefits because dis- ability was insufficiently severe. Social Security Tribunal Appeal Division dismissed applicant's ap- peal. Applicant brought applica- tion for judicial review on ground that Appeal Division considered only some grounds advanced in application for leave to appeal. Application granted. Matter was remitted to different member of Appeal Division to determine all issues raised in application for leave to appeal. As merit-based challenge to Appeal Division's conduct of appeal, application was properly before this court. Section 58 of Department of Employment and Social Development Act sug- gested that all grounds in applica- tion for leave to appeal were live once leave was granted. Appeal Division's decision was unreason- able. Appeal Division took posi- tion that was opposite of funda- mental orderings when it stated that s. 58(2) of Act did not prevent Appeal Division from choosing among grounds of appeal and that Parliament should have specifi- cally said something in legislation if it disagreed. Appeal Division should have considered and de- termined all grounds raised in application for leave to appeal as long as they fell within categories in s. 58(1) of Act. Hillier v. Canada (Attorney General) (2019), 2019 Carswell- Nat 563, 2019 FCA 44, Johanne Gauthier J.A., David Stratas J.A., and Donald J. Rennie J.A. (F.C.A.). Federal Court Contracts CONSTRUCTION AND INTERPRETATION Words and phrases Insist meant no more than "require" or " demand" Plaintiff placed orders for supply of bunkers to vessels it chartered, pursuant to agreement with de- fendant suppliers for time-to-time purchases, and suppliers made arrangements with third party M Ltd. for physical delivery of bun- kers. M Ltd. invoiced suppliers while suppliers invoiced plain- tiff and, when suppliers declared bankruptcy, both requested pay- ment from plaintiff. In action by plaintiff and shipowners, M Ltd.'s motion for summary judg- ment was granted with ruling that plaintiff pay M Ltd. its invoiced amount and pay suppliers' receiv- ers amount equal to suppliers' mark-up. Receivers' appeal was allowed, primarily with respect to use of parol evidence, and matter remitted back for reconsideration. M Ltd's motion granted, with original conclusion on payment out of funds confirmed, and re- ceivers' motion dismissed. Spe- cific task was to consider meaning and implication of one clause in suppliers' general terms and con- ditions in determining who was contractually entitled to funds from plaintiffs, while other con- clusions including that plaintiff had agreed to assume obligations to M Ltd. were left unaffected. Pursuant to language of clause, M Ltd. "insisted" that plaintiff be bound by its terms and conditions for sale and delivery of bunkers to vessels. Such insistence did not require direct dealing with plain- tiff, as M Ltd. took persistent or peremptory stand in course of sig- nificant chain of transactions that its terms and conditions would apply. Neither suppliers nor plain- tiff raised or conceived of any ob- jection to M Ltd.'s standard terms and conditions. There was no in- dication that M Ltd. would have been willing to negotiate or de- liver bunkers on any terms other than its standard ones. Insistence on contractual terms did not re- quire something over and above usual business dealings, as sugges- tion that it would require some- thing forcing term through over resistance would untenably make insistence dependent on whether there was resistance by other parties. Receivers were trying to set clear intention of contracting parties in order to could claim full amount rather than mark-up that they were entitled to. Insist meant no more than "require" or "demand" where deal would not go through unless terms were ac- cepted, and fact that terms were part of standard terms and con- ditions did not mean they were not forcefully demanded with no room for refusal. Canpotex Shipping Services Limited v. Marine Petrobulk Ltd. (2018), 2018 CarswellNat 5535, 2018 CarswellNat 6210, 2018 FC 957, 2018 CF 957, James Russell J. (F.C.). Intellectual Property PATENTS TransFer oF inTeresT Open to minister to set filing date for NDS according to public policies and guidance documents Pharmaceutical company wished to market substance pegbovigras- tim as veterinary drug Imprestor to reduce incidence of clinical mas- titis in first 30 days of lactation in dairy cows and replacement heif- ers. Company submitted incom- plete veterinary new drug submis- sion (NDS) for Imprestor, but NDS was treated as "administratively complete". Company applied for patent for pegbovigrastim before providing information required to make NDS substantively com- plete. Company obtained notice of compliance (NOC) for Imprestor and patent for pegbovigrastim, but delegate of Minister of Health refused to list patent on patent register maintained pursuant to Patented Medicines (Notice of Compliance) Regulations (NOC regulations) and Food and Drug Regulations. Delegate determined NDS had been filed before patent application, contrary to timing re- quirements of s. 4(6) of NOC regu- lations. Company brought appli- cation for judicial review. Applica- tion dismissed. Standard of review was reasonableness, essentially because decision applying s. 4(6) of NOC regulations could not be dissociated with facts of case. Decision was not outside range of reasonable outcomes. Require- ment that application for patent be filed before submitting NDS for drug related to patent ensured that patents for inventions discovered after existence of drug did not pre- empt generic competition with drug. Delegate reasonably deter- mined filing date of NDS was date on which it had been found to be administratively complete and ac- cepted for evaluation rather than date on which all substantive com- ponents of submission were pro- vided for evaluation. In absence of legislation or regulations defining "date of filing" or prescribing rules for determining said date for fil- ing, it was open to minister to set filing date for NDS according to her own public policies and guid- ance documents. Eli Lilly Canada Inc. v. Can- ada (Attorney General) (2019), 2019 CarswellNat 266, 2019 Car- swellNat 329, 2019 FC 5, 2019 CF 5, Roger R. Lafrenière J. (F.C.). Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. Case Law CASE LAW Legal News at Your Fingertips Sign up for Canadian Legal Newswire today for free and enjoy great content. 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