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Page 18 December 3, 2018 • Law Times www.lawtimesnews.com ment tax credits for four taxa- tion years. Taxpayer appealed, but taxpayer failed to attend status hearing and Minister's motion to dismiss taxpayer's appeal was granted. Taxpayer then brought unsuccessful mo- tion for extension of time to set aside judgment and to set aside judgment rendered against it for its failure to attend status hear- ing. Tax court found that no reasonable explanation for delay had been provided by taxpayer. Taxpayer had not satisfied re- quirements necessary for Court to exercise discretion and grant motion requested. Taxpayer ap- pealed. Appeal allowed. Court made errors in not considering facts that were relevant in rela- tion to this application. Court did not address decisions such as Hogervorst and Larkman, which held that not all four fac- tors to be considered in applica- tion for extension of time would need to be satisfied in order for taxpayer to be successful. Akanda Innovation Inc. v. R. (2018), 2018 CarswellNat 6155, 2018 FCA 200, Wyman W. Webb J.A., Donald J. Rennie J.A., and J.B. Laskin J.A. (F.C.A.); reversed (2018), 2018 Carswell- Nat 535, 2018 TCC 35, Eugene P. Rossiter C.J. (T.C.C. [General Procedure]). Federal Court Intellectual Property TRADEMARKS Miscellaneous Consumer seeing " bunny brand" in relation to batteries would make connection to ENERGIZER Bunny Trademark Summary judgment to strike allegations. Defendant D Inc. and plaintiff E Inc. were lead- ing battery brands in Canada. E Inc. brought action for damages from D Inc.'s use of terms "next leading competitive brand" and "bunny brand" on labels D Inc. attached to packages of its D Inc. batteries. D Inc. brought motion for summary judgment to strike allegations from E Inc.'s second amended statement of claim. Motion granted in part. D Inc.'s use of term "bunny brand" on packages of its batteries may offend ss. 22(1) of Trademarks Act and will not be struck. D Inc.'s use of "bunny brand" may offend ss. 7(a) and 7(d) of Trademarks Act and will not be struck. D Inc.'s use of term "next leading competitive brand" on packages of its batteries did not offend either ss. 22(1), 7(a) or 7(d) and will be struck. E Inc. did not have right to accounting for profits. Given ENERGIZER Bunny Trademarks, and fact that each was a famous mark, somewhat-hurried consumer seeing words "bunny brand" in relation to batteries would make both link with and con- nection to ENERGIZER Bunny Trademark. D Inc. used "bunny brand" to claim that its batteries were longer lasting than E Inc.'s batteries. Energizer Brands, LLC v. The Gillette Company (2018), 2018 CarswellNat 6146, 2018 FC 1003, Henry S. Brown J. (F.C.). Pensions PUBLIC SERVICE SUPERANNUATION General principles Applicant's correspondence could not be treated as election when conditions of election were nowhere close to being met Applicant was employed by company from 1989 to Janu- ary 2010 when he was laid off after company obtained protec- tion under Companies' Credi- tors Arrangement Act (CCAA). While employed by company applicant was enrolled in its benefit pension plan. Company stopped contributing to pen- sion plan as result of insolvency, and Superintendent of Financial Services of Ontario ordered that pension plan be wound up ef- fective October 2010. As result of decision to wind up pension plan, members could not elect whether to receive deferred pen- sion or transfer commuted value of pension to another invest- ment vehicle until after wind up was completed, which was not until December 2016. In Sep- tember 2010 applicant obtained employment with federal pub- lic service, he was enrolled in Public Service Superannuation Plan (PSSP), and one of terms of PSSP was that employees who had prior pensionable service with another employer may pay sum of money into PSSP in ex- change for being credited with some or all of years of pension- able service with previous em- ployer. In 2011, applicant alleged he elected to buy back his pen- sionable service with company in accordance with s. 6(1)(b)(iii) (F) of Public Service Superan- nuation Act (Act). Applicant was informed by PSSP officer he was not he was not permitted buy back his pension because he was not in position to surrender his pension entitlement. When ap- plicant learned that windup of company's pension plan was im- minent he tried to finally imple- ment buy back of his service, and in 2017 he asked pension direc- tor to validate his 2011 election pursuant to s. 8(5)(a) of Act, but pension director advised appli- cant that his request to buy back pensionable service in 2011 was void and his request for relief un- der s. 8(5)(a) of Act was refused. Applicant applied for judicial review. Application dismissed. Applicant must meet all five preconditions set out in s. 8(5) of Act, but he did not make election for purposes of s. 8(5) (a) of Act in requests he submit- ted in 2011. Applicant did not use statutory form required by s. 8(1) as Act required him to do. Words applicant used were not of someone making election, but of someone asking for consider- ation of something. Applicant was not ready or able to actually purchase buy back. Applicant could not surrender his pension as required by ss. 4(2) and 4(3) of Public Service Superannuation Regulations. Applicant's corre- spondence could not be treated as election when conditions of election were nowhere close to being met. Applicant was not in position to make election, and he only became capable of making election when plan was removed from CCAA proceed- ings in 2016. Proulx v. Canada (Attorney General) (2018), 2018 Carswell- Nat 3788, 2018 CarswellNat 4055, 2018 FC 761, 2018 CF 761, Henry S. Brown J. (F.C.). Tax INCOME TAX Administration and enforcement Tax return added to assessment as it would not cause extraordinary delay or change fundamental nature of record Taxpayer failed to file returns for taxation years 2008 to 2012. Minister made arbitrary assess- ments for these years. Taxpayer attempted to e-file 2009 return within limitation but system rejected filing. Paper filing was rejected as being outside three- year limitation. Minister also rejected 2010 year filing on same ground. Taxpayer sought judi- cial review with regard to 2009 and 2010 returns. Application was struck but appeal was al- lowed. Parties reached agree- ment on consent with regard to 2009 return. Minister then refused to issue refund for 2009 due to limitation. Taxpayer's 2012 return was rejected as out- side limitation. Taxpayer sought to add 2012 year to judicial re- view of 2010 year and re-add 2009 year. Motion allowed in part. Motion was filed within reasonable time; change would not seem to lead to extraordi- nary delay and did not change fundamental nature of record. Interests of justice favoured add- ing 2012 return. Not clear that taxpayer might not get admin- istrative decision applying 2009 refund to amounts payable for other years. If that were to hap- pen judicial review would be fruitless and if refused it would be a new decision open to judi- cial review. 6075240 Canada Inc. c. Canada (Revenu national) (2018), 2018 CarswellNat 6123, 2018 CarswellNat 6212, 2018 FC 1044, 2018 CF 1044, Richard G. Mosley J. (F.C.). Tax Court of Canada Tax INCOME TAX Other deductions Taxpayer was not obliged by her employer to divide her time between two cities Taxpayer was reassigned to po- sition in different city and was given lump sum compensation payment from her employer for moving expenses. For three months, taxpayer regularly travelled between two cities. Taxpayer deducted $25 per day for housing and $51 per day for food for 51 days of temporary housing, and deducted $8,770 in cleaning and repair expenses with respect to new condo she purchased in new city. Tax- payer appealed denial of deduc- tions. Appeal allowed in part. Cleaning and repair costs did not meet requirements as they were incurred only to maintain lifestyle in first city, so expenses were incidental to move. Section 62(3)(c) of Income Tax Act pro- vided that expenses for meals and lodging were deductible for maximum of 15 days. Taxpayer was not obliged by her employer to divide her time between two cities, so taxpayer could not deduct more than 15 days for temporary housing and meals. Appeal was allowed for sole purpose of granting temporary housing deduction for 15 days at cost of $25 per night, given Min- ister's admission at hearing, and appeal was otherwise dismissed. Sottile c. R. (2018), 2018 Car- swellNat 6176, 2018 CarswellNat 6526, 2018 TCC 209, 2018 CCI 209, Alain Tardif J. (T.C.C. [In- formal Procedure]). Ontario Civil Cases Business Associations SPECIFIC MATTERS OF CORPORATE ORGANIZATION Shareholders Respondent blatantly preferred his family's interests to those of corporation Deceased and respondent began building homes and founded DBG Inc. was founded as vehi- cle to house their joint business venture. Since deceased's death, operations of DBG Inc. had been strictly family affair with re- spondent. Deceased entered into memorandum of agreement to deal with succession issues. De- ceased's wife's untimely death ten days after left estate's cash- f low insolvent from very begin- ning and estate was required to borrow funds to make cash con- tribution to DBG Inc.. DBG Inc. purported to assume W Inc.'s shareholders loan payable to es- tate. GD Inc. was incorporated in 2016 to pursue acquisition of property and respondents were sole officers and directors. Estate brought oppression application regarding loan and acquisition of property. Application grant- ed. There was breach of fiduciary duty and self-dealing. Deceased chose to place great deal of trust in his business partner to pro- tect interests of his estate within their joint business enterprise and time demonstrated that trust to have been misplaced. Respondent blatantly preferred his family's interests to those of corporation as whole and other individual respondents had ut- terly failed to act independently and could not be relied upon as guarantors. Idea that it would somehow be inappropriate for DBG Inc. to pursue "apartment- style" development despite cash hoard that was years in building while new, freshly-incorporated company funded by DBG Inc. could do so, using DBG's em- ployees and facilities beggared belief. Selfdealing and breach of fiduciary duty occurring in con- nection with property resulted in casual appropriation to ben- efit of respondents of almost half of cash reserves of DBG Inc. and appropriation to respondents of only acquisition undertaken during eight years that earnings have been banked and reserves built up for stated purpose of undertaking acquisition. Gambin Estate v. Di Bat- tista Gambin Developments Limited (2018), 2018 Carswel- lOnt 13727, 2018 ONSC 4905, S.F. Dunphy J. (Ont. S.C.J.). Civil Practice and Procedure COSTS Costs of particular proceedings Party ordered to pay costs on substantial indemnity basis for adopting ill conceived and unjustified procedure Patient was 89-year-old man with advanced dementia and number of medical conditions requiring medical and nursing attention. Patient required long term care, but due to shortage of space in long-term care facilities, he was required to stay in hospi- tal that provided care for chroni- cally ill patients. Patient's wife was his attorney for personal care and property and his liti- gation guardian. Disputes arose about care provided to patient, and hospital imposed restric- tions on wife's attendance due to her conduct. Wife installed video cameras so she could see what was happening over In- ternet, but some hospital staff covered cameras since they had not consented to being recorded, and hospital ultimately had its own video monitoring system installed. Wife commenced ap- plication for directions and in- junctive relief, and brought mo- tion for interlocutory injunction allowing her unrestricted access to patient and requiring hospi- tal staff not to interfere with or obstruct video cameras, which was dismissed on terms. Par- ties made submissions on costs. Wife was ordered to pay hospital costs on substantial indemnity scale in amount of $15,000. Wife made inappropriate attempt to bring motion ex parte and could easily have given hospital notice. Procedure adopted by wife was ill conceived and unjustified. Wife had spent over $42,000 pursuing matter while hospital spent over $16,000 responding. Leopold Edwin Siberg v. Bruyère Continuing Care Inc. (2018), 2018 CarswellOnt 17935, CASELAW

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