Law Times

Page 14 June 17, 2013 Law Times • 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. SUPREME COURT OF CANADA Professions PHYSICIANS AND SURGEONS Court of Appeal erred in finding trial judge's conclusions inconsistent Defendant physician decided to proceed with mid-level forceps delivery but began procedure without informing mother of risks. Defendant abandoned forceps procedure and left to make arrangements for Caesarean section. While he contacted on-call anaesthetist, fetal heart rate dropped, i.e. fetal bradycardia. Emergency Caesarean section performed; plaintiff baby born with umbilical cord around neck and shoulders. Baby severely brain damaged; injuries catastrophic, irreversible and significantly shortened life expectancy. Mother commenced negligence action on behalf of baby. Trial judge found defendant breached standard of care that required surgical team to be immediately available before undertaking procedure and by failing to obtain mother's informed consent. Trial judge found that defendant's actions caused baby's injuries and awarded damages. Defendant's appeal to British Columbia Court of Appeal allowed. Mother's appeal to Supreme Court of Canada allowed. Sole issue was causation. Legal test for causation is "but for" test. Trial judge concluded more likely than not that baby's umbilical cord became obstructed when compressed as result of forceps. Trial judge did not err by failing to address gap in time between forceps attempt and onset of bradycardia, taking into account evidence that physician's attempt to position forceps blades may displace baby's head such that umbilical cord would become compressed upon subsequent contraction. Trial judge expressly accepted "displacement" theory which addressed how forceps attempt could cause umbilical cord obstruction notwithstanding gap in time. Court of Appeal erred in finding trial judge's conclusions inconsistent. Trial judge concluded that only reasonable inference was that mid-forceps attempt likely caused cord compression. No palpable and overriding error in conclusion. Evidence of close proximity between forceps attempt and bradycardia, combined with well-recognized risk, supported finding of causation. Trial judge did not err in finding that defendant's failure to have back-up immediately available caused baby's injury. Trial judge found standard of care required defendant to take reasonable precautions before initiating forceps procedure. Causation supported by evidence establishing that defendant failed to take precautions which would have resulted in faster delivery and likely prevented injury from bradycardia. Trial judge concluded defendant had duty to obtain mother's informed consent and mother, properly informed that surgical back-up not immediately available, would have opted to wait. No error in approach. Ediger (Guardian ad litem of) v. Johnston (Apr. 4, 2013, S.C.C., McLachlin C.J.C., LeBel J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34408) Decision at 202 A.C.W.S. (3d) 592 was reversed. 226 A.C.W.S. (3d) 284. FEDERAL COURT OF APPEAL Industrial and Intellectual Property PATENTS Scarce judicial resources does not outweigh effect of dismissal of action on appellant's rights This was appeal of application judge's decision dismissing appel- These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-387-5164. lant's action. Appellant brought impeachment action and sought declaration that two patents were invalid. Respondents brought motion to dismiss part of impeachment action. Application judge granted respondents' motion and dismissed action. Appeal allowed. Application judge erred in failing to state conclusion with regard to effect of dismissal of appellant's action on its rights under Act Concerning Monopolies and Dispensation with Penal Laws (Ont.). Appellant's action was not one that could not possibly succeed. Had judge considered effect on appellant's rights, in light of Statute of Monopolies, he would have concluded that appellant's rights would be affected by dismissal of its action and that it was appropriate, in circumstances, to allow it to continue with impeachment action of both patents. Scarce judicial resources does not outweigh effect of dismissal of appellant's action on its rights arising under Statute of Monopolies. Apotex Inc. v. Warner-Lambert Co. LLC (Dec. 5, 2012, F.C.A., M. Nadon J.A., Sharlow J.A., and Dawson J.A., File No. A-81-12) Decision at 213 A.C.W.S. (3d) 459 was reversed. 226 A.C.W.S. (3d) 236. FEDERAL COURT Industrial and Intellectual Property TRADEMARKS Test for confusion based on ordinary beer drinking consumer This was appeal of refusal of member of Trademarks Opposition Board to register trademark. Applicant was based in Philippines. Applicant filed application to register trademark RED HORSE MALT LIQUOR and horse head design for use in association with beer, ale, pilsner, stout and bock. Respondent opposed trademark application on basis of its ownership of number of trademarks that included words BLACK HORSE, which had been used continuously since 1922. Primary market for BLACK HORSE ale was in Newfoundland and Labrador. Member refused to register trademark RED HORSE and design because of likelihood of confusion with trademark BLACK HORSE. Appeal allowed. There was new evidence that met threshold for admissibility, as it was material to decision and could have made difference. In light of new evidence, standard of review was correctness. Test for confusion was premised on ordinary beer drinking consumer. Ordinary beer drinker was sensitive to names of beers and to what they knew and liked. One look at labels of RED HORSE and BLACK HORSE was sufficient to dispel any notion of confusion between RED HORSE, with just horse's head, and BLACK HORSE, with horse in profile. However, that was not determinative. Issue was whether ordinary beer drinking consumer, on hearing words RED HORSE, was likely to think that RED HORSE was beer made by same company that made BLACK HORSE. There was no evidence to suggest such confusion and as matter of common sense such confusion was unlikely. Fact DARK HORSE was sold without evidence of confusion with BLACK HORSE undermined idea that respondent had secured such necessary recognition in relation to word HORSE in relation to beer. Member never stepped back and asked fundamental question about confusion. Board did not consider that what it was doing was, in effect, granting respondent trademark monopoly over word HORSE of any colour in relation to beer. Breadth of monopoly was unreasonable. Board's decision was not correct or reasonable. Molson Canada 2005 v. San Miguel Brewing International Ltd. (Feb. 14, 2013, F.C., Michael L. Phelan J., File No. T-1260-12) 226 A.C.W.S. (3d) 242. ONTARIO CIVIL CASES Arbitration LIMITATION PERIODS Parties clearly intended all disputes to be submitted to arbitration Application for declaration respondent out of time to require arbitration of shareholder dispute. All parties shareholders in company providing computer and system technical services to customers. Respondent also employee. Shareholder agreement provided that any shareholder who left employment would have shares purchased by others at value determined in accordance with agreement. In absence of agreement, value would be determined by independent valuator. All disputes would be resolved through arbitration. In January 2010, respondent notified applicants of intention to leave to work for one of company's major customers and offered to sell shares for $100,000. Applicants refused and retained independent valuator. In April 2011, valuator delivered report valuing respondent's shares at $37,500. Applicants refused to pay and urged respondent to await possible sale of company to third party. Respondent initially agreed but, in August 2011, demanded payment of $37,500. Applicants failed to pay and, in July 2012, respondent gave applicants notice of intent to proceed to arbitration. Applicants initially receptive to arbitration and agreed to dates in December 2012, but later objected on basis of expense and complexity. Respondent sought to have within application stayed on basis limitation issue within jurisdiction of arbitrator. Application dismissed. Section 6 of Arbitration Act, 1991 (Ont.), provided court should not interfere in any matter governed by Act except in specific circumstances. Section 7 provided for stay of any matter that should AVAILABLE ONLINE AND IN PRINT WIpN GACard le ift REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! ting 500 Aepyour current lisnced a Upgrad or Silver enh 13 ld 20 to a Go by June 30, in. listing hance to w for a c elow for details $ See b PLUS! Monthly draws from January to June, 2013 for a $100 Apple Gift Card just for asking how you can develop your business with an Annual Gold or Silver Enhanced Listing. Untitled-3 1 With more than 179,000 page views and 31,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com Visit www.canadianlawlist.com for full contest details. www.lawtimesnews.com 13-01-08 1:26 PM

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