Law Times

Page 18 would have done. It was almost impossible to come up with objective way of fixing in-person party's hourly rate or amount of time they spent, not in court, doing what would otherwise be considered lawyer's work. Process was sometimes delayed as mother struggled to solve some issues. Mother did not invite litigation, but only wanted to maintain child support. Mother and child needed money. Father demonstrated unreasonableness and willingness to create economic hardship for mother and child. Mother necessarily and appropriately sought counsel from time to time and minimized her fees. Mother was entitled to recover those fees. Consistent with fairness, reasonableness, access to justice and proportionality, starting point must be full indemnity for mother's legal fees. Mother should recover sufficient costs to pay lawyers she retained and portion of own expenses less reduction for costs thrown away. Father was to pay costs fixed at $90,000. Jordan v. Stewart (Aug. 15, 2013, Ont. S.C.J., Czutrin J., File No. FS-00-FA008868FISA) Additional reasons to 227 A.C.W.S. (3d) 197. 231 A.C.W.S. (3d) 692. Industrial and Intellectual Property COPYRIGHT Common techniques had no originality and did not enjoy copyright protection Plaintiff was Canadian artist who created series of large oil paintings. Plaintiff claimed defendant infringed plaintiff 's copyright in series. Claim was dismissed. Each image of classical series was original and copyright subsisted in each painting of series. Copyright did not subsist in series as whole. Plaintiff 's argument that series was compilation because it evoked feeling common to all of plaintiff 's works was rejected. Series was not compilation as defined in Copyright Act (Can.), because feeling was insufficient to meet test. It was unwise to extend copyright protection to visual perception of artistic work which was intangible and subjective. Similarities between 17 comparisons were artistic devices historically common among painters. Common techniques had no originality and did not enjoy copyright protection. Plaintiff could not rely on common techniques to establish copyright infringement. Defendant's 17 comparison works were not substantial copies of plaintiff 's comparable images and were not colourable imitations of plaintiff 's comparable works. Evidence did not sufficiently show defendant had direct access to 17 images defendant allegedly infringed. Defendant established defendant created 17 comparison images independently from plaintiff 's November 25, 2013 Law Times • caselaw comparison images. Rains v. Molea (Aug. 15, 2013, Ont. S.C.J., Chiappetta J., File No. CV-09-385355) 231 A.C.W.S. (3d) 787. Municipal Law BYLAWS Bylaw was found to be illegal but was not quashed This was application for costs. Applicant, property owner, sought order quashing bylaw passed by respondent municipality. Bylaw authorized agreement with respondent BTC to utilize unopened road allowance that abutted applicant's property for purpose of establishing footpath as part of trail system. Bylaw was found to be illegal, as it was not passed in accordance with municipality's notice requirements. Court exercised discretion not to quash bylaw and application was dismissed. Respondents made offer to settle. Application dismissed. Applicant did better than offer to settle. Case was of divided success. Bylaw was found to be illegal but it was not quashed. No costs should be awarded to any party. Each party was to bear own costs. O'Mara v. Northern Bruce Peninsula (Municipality) (Aug. 26, 2013, Ont. S.C.J., Conlan J., File No. 12-091) Additional reasons to 228 A.C.W.S. (3d) 256. 231 A.C.W.S. (3d) 618. Negotiable Instruments LOST INSTRUMENT Transaction should be completely risk free to bank Applicant purchased $2 million bank draft from respondent bank. Draft was payable to Minister of Natural Resources, New Brunswick. Draft was lost or misplaced by one of applicant's executives. Minister confirmed that draft had not been delivered, and if it were to be delivered, it would not be cashed, but in event it was to be cashed in error, funds would be returned to bank. Applicant requested declaration that draft was void by reason that it had been lost and was not and could not be delivered to Minister. It also sought order requiring bank to return $2 million held by bank. Application dismissed. Transaction as entered into by bank should be completely risk free to bank. Bank had received payment from applicant. Bank had issued draft. Draft was obligation of bank. Draft was lost by representative of applicant. Having concluded transaction, it was not up to bank to factor into contract any further business risk. Commercial certainty favoured bank. Equities did not favour outcome sought by applicant. Atlantic Potash Corp. v. HSBC Bank Canada (Jul. 26, 2013, Ont. S.C.J. [Commercial List], Morawetz J., File No. CV13-10037-00CL) 231 A.C.W.S. (3d) 810. Police LIABILITY IN TORT Good intentions did not in themselves create licence to trespass Mother and father had high conflict relationship resulting in variety of police interactions and criminal charges levelled in both directions. Focal point was custody of their son, where father was waging campaign to alienate son from mother. Mother was arrested and held in custody for assaulting father. While mother was awaiting bail hearing, and without prior notice to her, father attended mother's residence accompanied by police officer who supervised father's taking of items he claimed were required for immediate care of son while mother was in custody. Father has had custody of son since. Mother sued father for theft of personal property and police for aggravated and punitive damages. Claims allowed in part. Police were liable to mother for its officer's trespass to her residence. There was no legal authority for police entry to mother's property. Good intentions did not in themselves create licence to trespass. Police committed no civil wrong to mother's personal property, and were not otherwise party to father's wrongful taking of personal property that day. However, no compensatory damages were proved to have been sustained by mother as result of that trespass, aggravated or otherwise. Equally, there was no evidence of kind of highhanded, shocking, deliberately injurious sort of behaviour justifying award of punitive damages. Nominal damages were awarded against police in amount of $200. Parsons v. Waterloo Regional Police Services (Aug. 17, 2013, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 1751/12) 231 A.C.W.S. (3d) 833. TAX COURT OF CANADA Employment Insurance APPEAL Neither worker nor employer able to describe relationship clearly and accurately Appeal by worker and payer from finding worker was not engaged in insurable employment during three periods on basis worker and payer were related and were not dealing at arms' length. Payer was roofing company and worker was son of sole shareholder. Payer operated seasonally, usually hiring seven or eight workers each season. Worker had worked for payer since 2001 and incorporated own roofing company of which he was sole proprietor, but worked only for payer. Facts relied on by Minister were that workers sometimes used his www.lawtimesnews.com own tools, and sometimes used payer's, had to do jobs arranged by payer and was paid $900 weekly salary, which worked out to $2 per hour more than other workers, to compensate for his supervisory work. Beginning in 2008, worker began to receive additional income for piece work that was performed at same time as his supervisory duties and assisted by other workers. Additional amounts earned by worker were in excess of $70,000 per year and other workers did not receive same piece work payment. It was not disputed that worker's hourly rate was reasonable. Extra income and compensation for use of truck and equipment to operate second crew were in question. Confusion arose because of worker's answers on Human Resources self-employment questionnaire. Worker was now clear in his testimony that he had always been employee of payer, he was not operating a roofing company, and confusion arose because he did not know how to qualify his relationship with payer. Appeal dismissed. Facts relied on by Minister were provided by worker and payer through questionnaire and conversations and neither was able to describe their relationship and piece work arrangements clearly and accurately. Relationship was first described as subcontract by worker and appeared as such in payer's books, during investigative stage worker told officer he was self-employed and paid for piece work, and then at hearing worker claimed piece work actually referred to equipment rentals, a claim not supported by invoices or name of worker's company. Worker also testified he was employee paid with hourly wage plus commission. Onus was on appellants to establish Minister's decision was unreasonable and they failed to do so with their differing and inconsistent scenarios. Furthermore, if arrangement of salary plus commission was accurate, it was not an arrangement a non-arm's length person would enter, given worker's share was apparently entirely at payer's discretion. Michaud v. Minister of National Revenue (Aug. 1, 2013, T.C.C. [Employment Insurance], François Angers J., File No. 2012-457(EI), 2012-440(EI)) 231 A.C.W.S. (3d) 683. Taxation INCOME TAX Big step to treat request for change in filing position as notice of objection Application by taxpayers for order extending time for service of notices of objection to assessment for 2007 taxation year. Assessments were based on applicants' filings for 2007 taxation year, but applicants did not include deductions in respect of tax shelter investment because they were warned not to by CRA. Applicants later sent T1 requests for adjustment and Minister denied their requests. Applicants then sent notices of objection, which were found to be out of time. Applicants argued their requests for adjustment ought to have been treated as notices of objection or applications for extension of time to file notices of objection, or determination of requests ought to have restarted limitation period. Application dismissed. No provision in Income Tax Act (Can.), required Minister to do what applicants asked, though CRA had tremendous discretion and could have done so. It was not unusual for CRA to treat late filed notices of objection as requests to extend time; however, it would be pretty big step to treat request for change in filing position as notice of objection. Regardless of what Minister could have done, court was bound to accept authority in Armstrong v. Canada (2006), 147 A.C.W.S. (3d) 327 (F.C.A.), as relied on by respondent, which held amended return did not impose any obligation to assess as it was merely a request. Applicants could have filed notices of objection in conjunction with requests and were even warned that responses to their requests might be delayed and they must apply for extension of time to preserve rights, yet failed to do so. Denial of requests were not assessments as there was no tax assessed, and treating these responses as assessments would result in administrative nightmare. Latest assessment date was March 26, 2009, from which applicants had one year, 90 days to application for extension of time. Even accepting applicants' claim they mailed notices of objection on September 7, 2010, deadline had expired. Requests could not be treated as loss determinations under s. 152(1.1) given applicants were unable to change returns without permission from Minister, for which they had to file timely objection and did not do so. Petratos v. R. (Jul. 26, 2013, T.C.C., J.E. Hershfield J., File No. 2011-206(IT)APP, 2011202(IT)APP, 2011-209(IT) APP) 231 A.C.W.S. (3d) 830. ONTARIO CRIMINAL DECISIONS Appeal PROCEDURE Summary conviction appeal judge had no jurisdiction to order fresh sentencing hearing Accused was convicted of sexual assault and sexual touching and sentenced to total of six months' imprisonment. Complainants were 12 and 16 years old at time of offences and were friends of accused's stepdaughter. At sentencing hearing, trial

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