Law Times

Page 13 Law Times • January 13, 2014 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 OF APPEAL Administrative Law JUDICIAL REVIEW Allegation of jurisdictional error did not constitute exceptional circumstances This was appeal of dismissal of application for judicial review. Formal disciplinary proceedings were instituted against appellant for alleged violations of Royal Canadian Mounted Police's Code of Conduct. Board was appointed to hear complaint. Section 43(4) of Royal Canadian Mounted Police Act, required commanding officer to give appellant notice of hearing and particulars of allegations against him forthwith after commanding officer was notified of appointment of board. Notice was provided to appellant ten months after commanding officer was notified of appointment of board. Appellant argued that commanding officer's failure to provide notice forthwith deprived board of jurisdiction. Board decided that in circumstances notice had been delivered forthwith. Appellant applied for judicial review of board's decision. Federal Court declined to hear application for judicial review on basis that there was no exceptional circumstance to justify judicial review of board's interlocutory decision. Appeal dismissed. Standard of review was correctness. Court would not intervene with interlocutory decision of administrative tribunal unless there were exceptional circumstances. Decision was interlocutory. Allegation of jurisdictional error did not, in and of itself, constitute exceptional circumstance that justified judicial intervention with respect to interlocutory decision. Appellant's right of appeal in s. 45.14 of Act was adequate alternate remedy. Fact that appellant had to wait until board rendered its final decision before he could appeal decision with respect to jurisdiction was not exceptional circumstance. Black v. Canada (Attorney General) (Sep. 9, 2013, F.C.A., J.D. Denis Pelletier J.A., Johanne Trudel J.A., and Robert M. Mainville J.A., File No. A-481-12) Decision at 223 A.C.W.S. (3d) 238 was affirmed. 232 A.C.W.S. (3d) 808. Civil Procedure AFFIDAVITS Affidavit explained why documents were not relevant and provided full answer to claim This was appeal of judge's dismissal of appeal. Appellant sought judicial review of denial of request for access to information. She cross-examined representative of respondent on affidavit. Affiant failed to bring two documents and appellant moved to have her re-attend for further cross-examination. Prothonotary dismissed motion. Appellant's appeal was dismissed. Judge found that order of prothonotary was not clearly wrong. Appeal dismissed. Affidavit explained why documents were not relevant, which provided full answer to appellant's claim. Fact documents were reviewed did not establish relevance. Examination of affiant did not establish any basis for holding that relevant documents were being withheld. There was no basis for putting into question affiant's assertion that all relevant documents had been produced. Appeal should have been dismissed without costs. Stubicar v. Canada (Deputy Prime Minister) (Sep. 17, 2013, F.C.A., Marc Noël J.A., Mainville J.A., and Webb J.A., File No. A-53812) Decision at 226 A.C.W.S. (3d) 348 was reversed in part. 232 A.C.W.S. (3d) 585. FEDERAL COURT Appeal GROUNDS No possibility that trier of fact would not convict accused of second degree murder Application for judicial review of decision of Minister of Justice denying accused's request for ministerial review of seconddegree murder conviction under s. 696.1(1) of Criminal Code. In 2000, accused was convicted of second degree murder of his wife and sentenced to life in prison with no chance of parole for 16 years. At time of her death they had been separated for four years and were in midst of acrimonious divorce proceedings. Wife died from smoke inhalation after matrimonial home set afire, but she had also suffered severe brain injuries caused by accused beating her with hockey stick. Trial judge adopted prosecution's theory that accused had severely beaten victim, left her in basement, poured gasoline in house and ignited it with a match, intentionally killing her. Trial judge agreed accelerant was present, and that electrical fire as result of car crash was not cause of fire. At trial, one expert witness testified accelerant was used to start fire; two others testified that electrical source or vehicle fire was not cause of fire. Other circumstantial evidence pointed towards accused's guilt. Accused's conviction was upheld on appeal. In 2009, accused submitted application to Minis- These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. ter pursuant to s. 696.1 of Code, including three reports by fire and arson experts contradicting Crown opinion evidence at trial. Minister dismissed application, acknowledging reports "questioned" expert conclusions, but noting remedy under 696.1 extraordinary. Even if fire not started by accelerant, there was sufficient circumstantial evidence for trial judge to determine accused intended to kill victim. Minister's implied interpretation of "miscarriage of justice", which focused on whether accused would have been convicted notwithstanding new expert evidence, was reasonable. It was within range of acceptable outcomes that Minister would conclude there was no possibility that trier of fact would not convict accused of second degree murder. Application dismissed. Walchuk v. Canada (Minister of Justice) (Sep. 17, 2013, F.C., Michael D. Manson J., File No. T-457-12) 109 W.C.B. (2d) 525. Immigration EXCLUSION AND EXPULSION Security posted by parents was not 'guarantee' Minister of Public Safety and Emergency Preparedness applied for judicial review of decision of Immigration Division of Immigration and Refugee Board. Board ordered that respondent be released from detention on terms and conditions pending outcome of his admissibility hearing under s. 44 of Immigration and Refugee Protection Act (Can.). Respondent was American citizen and claimed he was drugged, subjected to psychological torture and questioned by FBI agents on national security matters when he crossed into Canada. Respondent claimed refugee protection. Refugee claim was suspended pending admissibility hearing and respondent was detained. At respondent's sixth detention review hearing he was released subject to conditions. Respondent's parents were to post $10,000 cash deposit, and respondent was to be subject of GPS monitoring during his release. Respondent was not to leave parent's residence unaccompanied and was not to have access to internet. Minister claimed parents were not adequate bondspersons. Application dismissed. Security posted by parents was not "guarantee". They posted cash. Board took into account possibility of lengthy detention of respondent pending his admissibility hearing and decided to release him from detention. That decision was reasonable in circumstances. Use of GPS monitoring as condition of respondent's release was reasonable. Canada (Minister of Public Safety www.lawtimesnews.com and Emergency Preparedness) v. Dehart (Sep. 5, 2013, F.C., E. Heneghan J., File No. IMM5277-13) 232 A.C.W.S. (3d) 762. SELECTION AND ADMISSION Neither existence nor content of call were disclosed to applicant This was application for judicial review of decision of case officer denying application for permanent residence. Applicant was citizen of China. Applicant came to Canada as international student and was working in Canada on post-graduate work permit. Officer rejected application on ground that job duties in letter of reference were not contained in duties listed under notice of compliance 1112, project analyst. Officer was not satisfied that applicant obtained 12 months of fulltime work experience in occupation with notice of compliance skill type of 1 or skill level of A or B. Application granted. Standard of review was correctness. Officer relied on information that was not in applicant's submissions. Officer spoke to applicant's employer. When officer had access to information that applicant was not aware of, applicant should be given opportunity to disabuse officer of any concerns arising from evidence. Neither existence nor content of call were disclosed to applicant. Officer misleadingly omitted any mention of call. Officer violated duty of fairness. Matter was referred to different officer for redetermination. Wu v. Canada (Minister of Citizenship and Immigration) (Jul. 31, 2013, F.C., John A. O'Keefe J., File No. IMM-2763-12) 232 A.C.W.S. (3d) 764. Industrial and Intellectual Property TRADEMARKS Length of time trademarks had been in use overwhelmingly favoured respondent These were appeals under Trademarks Act (Can.), of decisions of trademarks opposition board refusing applications to register trademarks. In December 2006, appellant filed applications to register two trademarks for CHINESE CHARACTER DESIGN and for SAINT HONORE CAKE SHOP & CHINESE CHARACTER DESIGN. Respondent filed statements of opposition. Board refused applications. Board found that applicant had not discharged its burden of showing, on balance of probabilities, that there was no reasonable likelihood of confusion between appellant's proposed trademarks and respondent's trademarks with respect to overlapping wares. Appeals dismissed. It was open to board to find that sub- stantial portion of respondent's actual customers would be able to read and understand Chinese characters. Respondent had prominently displayed Chinese characters of its trademarks for decades in many of its materials. Evidence demonstrated that respondent's trademarks had become known in greater Vancouver area, particularly among Chinese community. Board did not err in finding that length of time parties' trademarks had been in use overwhelmingly favoured respondent. Board was entitled to find that trademarks shared similarities in sound and appearance. It was reasonable of board to allow grounds of opposition based on s. 12(1)(d) of Act with respect to overlapping wares. Board did not err in finding that appellant failed to establish no likelihood of confusion between its trademarks and respondent's trademarks with respect to overlapping wares, as respondent clearly established use of trademarks prior to December 2006, and appellant had not filed any evidence that likelihood of confusion changed. It was open to board to find that respondent established its trademarks had become known to sufficient degree to negate distinctiveness of marks prior to date it filed its statement of opposition. Cheung's Bakery Products Ltd. v. Saint Honore Cake Shop Ltd. (Sep. 5, 2013, F.C., Michel Beaudry J., File No. T-1761-11, T-1763-11) 232 A.C.W.S. (3d) 767. SUPREME COURT OF CANADA Defences PROVOCATION No evidence existed that deceased's wrongful act or insult was sudden Accused charged with second degree murder. Accused shot acquaintance in back and head. Accused claimed in police confession that deceased had been extorting him and threatening his mother for years. Accused brought loaded handgun to confront deceased about extortion. Accused said that he shot deceased in rage after deceased made veiled threat against his mother. Jury rejected defence of provocation and convicted accused. Majority of Court of Appeal dismissed accused's argument that jury instructions on provocation were deficient. Appeal dismissed. Defence of provocation had no air of reality. No evidence existed that deceased's wrongful act or insult was sudden. R. v. Pappas (Oct. 25, 2013,

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