Law Times

Page 13 Law Times ��� March 4, 2013 caselaw 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. FEDERAL COURT Aboriginal Peoples HUNTING AND FISHING RIGHTS Crown had ongoing duty to continue to consult in good faith New regulatory regime had to be set up. Crown issued four fish licenses. Band considered licenses to be issued in traditional territory. There were general meetings with parties at interest and there was dialogue with applicant. Department did not provide preliminary assessment of applicant���s claim and what adverse impact would arise from issuance of licenses. Consultation continued after issuance of licenses. Application for judicial review was allowed in part. Crown acted reasonably and honourably with respect to applicant. Crown should have admitted earlier Crown had constitutional duty to consult. It was too much for applicant to expect preliminary assessment of strength of applicant���s claim. Crown had duty to consult with applicant and had ongoing duty to continue to consult in good faith and offer accommodation if appropriate. It was reasonable to limit consultation to conditions of license as opposed to issuance of licenses. It was not appropriate for court to assume control over ongoing consultation or as to what course consultations should take. Order would not issue prohibiting Minister from renewing licenses until consultation process was complete. K���omoks First Nation v. Canada (Attorney General) (Oct. 1, 2012, F.C., Harrington J., File No. T-74-11) 222 A.C.W.S. (3d) 286. SUPREME COURT OF CANADA Assault AGGRAVATED ASSAULT Aggravated assault made out in circumcision of son with no skill or training Accused attempting to circumcise four-year-old son. Accused having no skill or training in field, but conducting rudimentary research before performing procedure. Child needing emergency surgery at hospital, experiencing pain, temporary disfigurement, as result of accused���s actions. Accused seeking circumcision of son as part of his own religious beliefs. Trial judge convicting accused of criminal negligence causing bodily harm, acquitting of aggravated assault and assault with weapon. Trial judge holding type of wounding required for aggravated assault conviction not made out, as child not maimed, disfigured after timely medical intervention. Crown���s appeal from acquittal for aggravated assault allowed by Court of Appeal and conviction entered. Accused���s appeal dismissed. Elements of aggravated assault were established. R. v. W. (D.J.) (Nov. 16, 2012, S.C.C., LeBel, Fish, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ., File No. 34623) Decision at 282 C.C.C. (3d) 352, 100 W.C.B. (2d) 154 was affirmed. 104 W.C.B. (2d) 623. FEDERAL COURT OF APPEAL Industrial and Intellectual Property PATENTS Product specificity requirement set high threshold of consistency This was appeal of dismissal of application for judicial review. Appellant filed new drug submission (���NDS���) seeking approval of drug for treatment of HIV infection. Appellant submitted patent for listing on patent register. Issue was whether patent was eligible for listing on patent register in respect of NDS where medicinal ingredients claimed in patent did not match up with those in NDS. Respondent Minister refused to list patent on patent register as it did not meet requirements of s. 4(2) (b) of Patented Medicines (Notice of Compliance) Regulations (Can.). Appellant applied for judicial review. Judge dismissed application. Appeal dismissed. Claims at issue in patent were for new combination of medicinal ingredients so eligibility of patent for listing depended on requirements of s. 4(2)(a) of Regulations, not s. 4(2)(b). Relevant claims in patent did not meet requirements of s. 4(2)(a), as they lacked strict product specificity with respect to three medicinal ingredients listed in NDS. Both Minister and judge failed to give sufficient weight to requirement that formulations contained non-medicinal ingredients. Definition of formulation in Regulations was clear and must contain both medicinal and non-medicinal ingredients. Patent failed under s. 4(2) (a), as relevant claims consisted of chemically stable combinations of medicinal ingredients. Product specificity requirement These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. set high threshold of consistency. Medicinal ingredients must be set out in patent claims and NOC for patent to be eligible on register. Patent claims failed requirement for product specificity under s. 4(2)(a), as they did not make specific reference to medicinal ingredient but only to broad class of compounds. Gilead Sciences Canada Inc. v. Canada (Minister of Health) (Oct. 9, 2012, F.C.A., Trudel, Sharlow and Mainville JJ.A., File No. A-44-12) Decision at 214 A.C.W.S. (3d) 940, 101 C.P.R. (4th) 240 was reversed. 222 A.C.W.S. (3d) 500. ONTARIO CIVIL CASES Administrative Law NATURAL JUSTICE Failure to provide required medical evidence due to lack of diligence Appeal by teacher from respondent College���s Disciplinary Committee���s refusal to grant adjournment. Hearing proceeded in appellant���s absence and he was found to have committed professional misconduct. Appellant sought new hearing at which he could participate. Hearing was originally scheduled for 2005 but, over course of six years, various dates were set and adjourned because of appellant���s health and involvement in other proceedings. In January 2010, adjournment was granted to July 26, 2010, but terms were imposed, including requirement that any further extension would only be considered if based on specific, supported medical grounds. Appellant requested adjournment in early July and attached letter from psychiatrist indicating he was depressed, but saying nothing about his ability to attend hearing, and letter from family doctor stating he was medically unstable to attend hearing because of depression and heart problems. Hearing coordinator wrote to appellant and advised further evidence was required as materials provided said nothing about appellant���s treatment, prognosis or when he might be available for hearing. Appellant did not respond or attend hearing. Committee���s decision noted it gave careful consideration to adjournment request but found appellant had not met conditions he agreed to. Appellant denied receiving hearing coordinator���s letter and claimed he would have submitted more evidence had he known it was needed. Appeal dismissed. Appellant���s submissions did not deal with fact he did not comply with terms of medical evidence www.lawtimesnews.com at first instance. Furthermore, appellant sent letter to the hearing coordinator two weeks later, in which he enclosed her letter, so had clearly received it. Failure to provide required medical evidence was due to lack of diligence. Appellant also breached condition requiring him to request file from his lawyer within two weeks of when adjournment was granted. Decision refusing to grant adjournment was justified and there was no denial of procedural fairness. Appellant could have had a hearing, but was consistently unwilling to proceed. McIntyre v. Ontario College of Teachers (Oct. 12, 2012, Ont. S.C.J. (Div. Ct.), Lax, Hambly and Lederer JJ., File No. 22/11) 222 A.C.W.S. (3d) 405. Appeal TIME Landlord appeared to be giving selective history Application by landlord to extend time to file appeal. Board ordered landlord to pay tenant $7,720. Landlord claimed he retained counsel, prepared materials and attempted service but did not attach these materials or affidavit of attempted service. Landlord claimed there was miscommunication with counsel, which led to motion not being booked earlier. Majority of award related to compensation for costs incurred in replacing property destroyed or disposed of by landlord. Landlord claimed to still have certain belongings of tenant. It was important to resolve this matter in timely way. Landlord maintained tenant agreed to vacate and denied tenant���s allegations of substandard living and wrongfully disposing of property. Landlord claimed he was ready to respond to claim but not notified of hearing until after it was held. Application dismissed. Based on postmark, it would have taken notice 24 days to reach landlord if not received until after hearing, which seemed unlikely. In request to review decision, landlord said he received notice late, but not that it arrived after hearing date. Landlord appeared to be giving a selective history. There was real possibility he received notice prior to hearing yet failed to attend. Board was entitled to proceed in landlord���s absence. Evidence of landlord���s intention to appeal and explanation for delay were thin, plus there was some prejudice to tenant and appeal had questionable merit. Jones v. Matthews (Nov. 14, 2012, Ont. S.C.J. (Div. Ct.), Grace J., File No. 530/12) 222 A.C.W.S. (3d) 514. Arbitration AWARD No reasonable basis to suggest arbitrator did not treat parties equally Applicant and teachers entered into liquidity agreement. Teachers claimed liquidity event occurred and liquidity payment was due to teachers under agreement. Applicant argued arbitrator failed to treat applicant fairly and did not give applicant opportunity to present case and to respond to teachers��� case. Applicant sought to set aside final arbitration award. Application was dismissed. Arbitrator���s interpretation of language of agreement as to liquidity event and application of interpretation to factual situation was straight forward given plain language and factual matrix. It was incumbent on applicant not arbitrator to bring forward admissible evidence as it considered relevant to issues. Arbitrator concluded arbitrator did not need to pursue additional evidence. Arbitrator reasonably dealt with adjournment request and there was no prejudice to applicant. There was no reasonable basis to suggest arbitrator did not treat parties equally or fairly. There was no basis to conclude rules of natural justice were breached. Finding that liquidity event occurred was not unreasonable. Teachers��� application to enforce award was allowed. Parmalat Canada Inc. v. Ontario Teachers��� Pension Plan Board (Oct. 29, 2012, Ont. S.C.J. (Comm. List), Cumming J., File No. CV-12-9728-00CL; CV-12-9723-00-CL) 222 A.C.W.S. (3d) 301. Conflict of Laws JURISDICTION Unfair to allow plaintiff to bootstrap defendants into Ontario action Motion by defendant to dismiss or stay action for lack of jurisdiction. Personal injury action arose from motor vehicle accident in New York in 2009. Plaintiff, who resided in Ontario, was rear-ended by defendant, who lived in New York. Plaintiff did not obtain medical attention until back in Ontario but now claimed variety of injuries and issued statement of claim in Ontario in 2011. Defendant���s insurance had US $300,000 limit so plaintiff also claimed against own Ontario insurer under underinsured motorist coverage. Plaintiff relied on contract with own insurer to establish jurisdiction. Defendant argued contract was not connected to dispute and there was no possibility award would exceed her

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