Law Times

Page 14 information submitted was insufficient to substantiate that applicant met occupational description. Officer made no mention of letter of appointment. There were three documents listing job duties and offer referred to only two documents. Application for judicial review was allowed. Officer did not explain why letter was considered as mutually exclusive to letter of appointment. It was unreasonable for officer not to consider third document in making decision or providing reasons. Butt v. Canada (Minister of Citizenship and Immigration) (Jun. 7, 2013, F.C., John A. O'Keefe J., File No. IMM-6620-12) 229 A.C.W.S. (3d) 535. Industrial and Intellectual Property PATENTS Core of damages founded on lost profits for "replacement sales" In 1984, plaintiffs obtained patent, valid until 2001, for means of manufacture of anti-cholesterol drug lovastatin, which plaintiffs began selling in Canada under trade name MEVACOR in 1988. Commencing in 1997, defendants began selling lovastatin in Canada, using two distinct process formulations. Plaintiffs commenced action for declaration that patent was valid and enforceable and for damages or other remedies for patent infringement. Action was allowed, patent was declared valid and one of two of defendants' formulations was held to infringe patent, sounding in damages only for "infringing product batches", and trial of quantum of damages was ordered. Fact that defendants had and used noninfringing alternative to patentinfringing formulation neither deprived plaintiffs of damages incurred from infringing batches nor reduced those damages. This was so because essence of defendants' argument concerning non-infringing alternative was that as defendants could have lawfully harmed plaintiffs, defendants should be permitted to unlawfully harm plaintiffs, unsustainable position. Core of plaintiffs' damages were founded on lost profits for "replacement sales" during life of patent, which in part founded order that damages, not accounting, was best remedy. Those "replacement sales" profits were calculated, on weight of expert evidence, as being $62.9 million to Canadian plaintiff and $51.29 million to United States plaintiff. Plaintiffs were also entitled to reasonable royalties, quantum of which was redacted from nonconfidential version of present judgment, for certain outstanding patented sales after expiry of patent. Plaintiffs' total damage award was fixed at $119 million, together with prejudgment and postjudgment interest. Merck & Co. v. Apotex Inc. (Jul. 16, 2013, F.C., Judith A. Snider J., File No. T-1272-97) 229 A.C.W.S. (3d) 539. September 23, 2013 Law Times • CASELAW ONTARIO CIVIL DECISIONS Insurance AUTOMOBILE INSURANCE Monthly care benefit not calculated based on number of hours caregiver unable to work Applicant rendered paraplegic in motor vehicle accident. Applicant's mother took unpaid leave of absence from job in order to care for applicant full-time. Pursuant to Statutory Accident Benefits Schedule ("SABS"), insurers required to provide certain no-fault benefits, including reasonable and necessary expenses incurred by or on behalf of insured for attendant care. Insurer took position that amount payable for attendant care benefits would be pro-rated based on 8 hours per day since mother had foregone only 40 hours per week paid work to care for applicant. Application judge held that insurer's obligation not limited to care provided during 40 hours per week of paid work foregone by mother, concluding that insurer must pay attendant care benefits for entire 24 hours per day applicant required. Insurer's appeal dismissed. Section 3 of SABS provides that expense in respect of attendant care costs not "incurred" unless insured received such care and person who provided care sustained economic loss as result of providing care. Issue was whether expense was incurred by insured with respect to attendant care services provided by mother outside of normal work hours. SABS incorporated in every standard insurance policy so principles applicable to construction of insurance coverage provisions applicable. Insurance coverage provisions to be interpreted broadly whereas coverage exclusions or restrictions to be construed narrowly. To extent "incurred" restricts coverage, it must be interpreted narrowly. Economic loss serves as threshold for entitlement to attendant care benefits. Amount of monthly care benefit to be calculated based on number of hours of each type of attendant care insured requires, subject to maximums. Monthly care benefit not calculated based upon number of hours family caregiver unable to work or quantum of economic loss sustained by caregiver. Henry v. Gore Mutual Insurance Co. (Jul. 16, 2013, Ont. C.A., Janet Simmons J.A., Alexandra Hoy J.A., and G.R. Strathy J.A., File No. CA C55845) Decision at 216 A.C.W.S. (3d) 224 was affirmed.  229 A.C.W.S. (3d) 545. Bankruptcy and Insolvency BANKRUPTS No evidence respondent had knowledge of representations and covenants Application by creditor for declaration pursuant to s. 178 of Bankruptcy and Insolvency Act (Can.), that outstanding debt of respondent would not be released by discharge and order lifting stay to permit applicant to take steps to enforce judgment against respondent. Applicant was insurer of mortgages for approved lenders. Respondent was approached by friend, who asked him to co-sign mortgage in order to help recent immigrant purchase property. Respondent was assured immigrant would make all mortgage payments, assume mortgage and title after one year, and pay him $2,500 for helping. Respondent met with purported mortgage broker and vendor, and executed necessary documents. Respondent and friend purchased property as tenants in common with a $516,370 mortgage, insured by applicant. Mortgage went into default and bank obtained default judgment against respondent and friend for $524,577, took possession, sold house and applied $331,875 net proceeds to debt, and then assigned judgment to applicant, who obtained order to continue action. Respondent's wages were garnished, leading to his bankruptcy. Application dismissed. While it was established that mortgage arose from fraudulent scheme, s. 178(1)(e) did not apply as respondent did not make fraudulent misrepresentations and had no knowledge of those made by friend with respect to income and property value, nor was he wilfully blind. Respondent was part-owner of property and liable for default, which was exactly what bank bargained for. No specific misrepresentation was made with respect to $2,500 payment respondent was to receive. Respondent did not represent he would occupy property and personally make payments, nor did applicant expressly state it intended Standard Charge Term document to be deemed representation under s. 178. Furthermore, there was no evidence respondent ever received documentation or had actual knowledge of representations or covenants contained within. There was no evidence respondent had knowledge of, or was wilfully blind to scheme. While respondent did not ask to meet immigrant or verify information, he explained he had no prior experience and arrangements seemed normal to him, and he trusted his friend. It was at least probable respondent's evidence was credible. Friend joined respondent and comortgagor and respondent had no reason not to trust him. Mere fact that respondent was bank employee was not sufficient to trigger s. 178(1)(d); respondent was acting in capacity as borrower, not as employee. Respondent awarded $28,000 costs. Canada Mortgage and Housing Corp. v. Gray (Apr. 30, 2013, Ont. S.C.J., H.J. Wilton-Siegel J., File No. Toronto 31-1594404) 229 A.C.W.S. (3d) 333. Contracts PERFORMANCE AND BREACH Losses arose as result of mismanagement and wrongful conduct www.lawtimesnews.com Individual defendant was security salesman and was employed by corporate defendant. Plaintiff, wife and child had accounts with defendants. Claims arose out of handling and lack of supervision of accounts. Plaintiffs sued for breach of contract, breach of fiduciary duties and negligence. Plaintiff was entitled to $281,145, wife to $80,717, and child to $34,550. Plaintiff 's relationship with defendants was not fiduciary. All of indicia of fiduciary relationship were not present. Presence of some instructions from plaintiff, even if ill-informed, reflected lack of total vulnerability. Wife and child were in fiduciary relationship with defendants and fiduciary duties were breached. Wife and child were unsophisticated and unknowledgeable. Defendants owed duty of care to plaintiffs, which defendants did not discharge. Negligence included failure to know clients, negligent completion and updating of NCAFs, unsuitable and inappropriate trading, short-term trading, unauthorized discretionary trading, and failure to supervise. Defendants breached contracts with plaintiffs. There was no ratification by any of plaintiffs. Plaintiffs did not complain to defendants because plaintiffs were unaware of any misconduct by defendants and did not consider losses were incurred as result of defendants' conduct. Defendants did not establish plaintiffs ought to have mitigated damages. After plaintiffs were aware of defendant's wrongful conduct, plaintiffs acted immediately. Losses sustained by plaintiffs arose as result of mismanagement and wrongful conduct of defendants. Each of plaintiffs contributed to losses through inattention and failure to take reasonable care for their own safely. Plaintiffs were 30% liable and defendants were 70% liable. Action was not barred by limitation period except claim for taxes was barred by two-year limitation period. Ridel v. Cassin (Apr. 17, 2013, Ont. S.C.J., Pepall J., File No. 06-CV-324065PD3) 229 A.C.W.S. (3d) 605. Courts ABUSE OF PROCESS Plaintiff had nothing to support serious allegations officers lied Motion by defendants to dismiss action as abuse of process. Plaintiff was convicted of murder in 1972 but maintained his innocence and filed application with Minister of Justice to review conviction in 2003. Reference to Ontario Court of Appeal was ordered and, after ten-day hearing, conviction was quashed and new trial ordered. Crown decided to withdraw charge and plaintiff 's application under Canadian Charter of Rights and Freedoms to require Crown to re-arraign him so he could be found not guilty was dismissed. Plaintiff commenced this action against Crown and police for damages on basis he would not have been convicted or wrongful convic- tion would have been discovered sooner but for negligence and wrongdoing. At heart of plaintiff 's claim was position he had alibi police verified but failed to disclose. Report by investigating officer referred to plaintiff 's alibi in Trenton, which indicated he could not have been in Ottawa when murder was committed. Alibi was not disclosed so jury did not hear it. However, before Court of Appeal, officer testified alibi had been discredited and Court of Appeal concluded it was unable to decide one way or another whether this was the case. Motion allowed. Plaintiff 's argument he was not seeking reversal, variation or nullification of orders made on reference or Charter application took too narrow a view of doctrine of abuse of process. Action was abuse of process because plaintiff was attempting to re-litigate issues that were before Court of Appeal, so was implicitly attacking its factual findings. Court of Appeal found there was no wrongdoing on part of Crown or police and found fresh evidence admissible under Palmer test, which applied where, through no fault of Crown, evidence came to light that could have affected trial results. Court of Appeal applied same balance of probabilities burden that judge would in this action. Court of Appeal unanimously rejected any suggestion of wrongdoing or unprofessional conduct by defendants, found investigation was professional and even-handed, it was inconceivable plaintiff was prosecuted with knowledge of his innocence, there was no duty to disclose discredited alibi and fresh evidence was not clearly decisive of plaintiff 's innocence. These findings together with lack of evidence for plaintiff to prove specific allegations made it abuse of process to proceed. Plaintiff had nothing to support serious allegations officers lied or that there were breaches of duty beyond what Court of Appeal had already considered. Plaintiff 's claim misconduct delayed quashing conviction and Charter claim was based on same concerns. Relitigating these issues would lead to less accurate result given memories would be further faded now, would be a waste of resources and could undermine the credibility of the judicial system if different conclusions were reached. Phillion v. Ontario (Attorney General) (Apr. 24, 2013, Ont. S.C.J., Frank J., File No. CV-12-452300) 229 A.C.W.S. (3d) 426. Employment WRONGFUL DISMISSAL Defendant had not proved that disputed expenses were inappropriate Plaintiff sought damages for wrongful dismissal. Plaintiff was co-op student at original firm in September 1999. Original firm hired plaintiff as senior associate in international tax following graduation in May 2000. In June 2002, original firm merged with defendant and original firm em-

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