Law Times

Law Times • January 27, 2014 charge for second, the Advisory Body noted evidence suggested trafficking, that applicant had used drugs while on break from work, and that events were fairly recent. Evidence reasonably supported conclusion that applicant, on balance of probabilities, might be prone or induced to commit, or to assist or abet an individual to commit, act that unlawfully interfered with civil aviation. Dolinski v. Canada (Attorney General) (Oct. 10, 2013, F.C., E. Heneghan J., File No. T-131712) 233 A.C.W.S. (3d) 532. Immigration JUDICIAL REVIEW Applicant as likely as other Algerians to be subject to Al Qaida recruitment attempts Applicant, aged 25, was citizen of Algeria. Applicant stated that member of Al-Qaida approached him and asked him to drive truck full of explosives onto oil company site. Applicant asked for a few days to think about request during which he was threatened by Al Qaida members. Applicant did not seek police protection. Applicant fled to France in 2007, where he stayed until 2010. Applicant did not seek asylum in France. Upon arrival in Canada in 2010, applicant claimed refugee status. Immigration and Refugee Board found in part that applicant was not part of particular social group as "persons seen as miscreants, traitors for refusing to collaborate with Al Qaida" did not fall in this category. Board denied claim. Applicant applied for judicial review of board's decision. Application dismissed. Applicant was not threatened by Al Qaida for political opinion. Applicant as likely as other Algerians to be subject to Al Qaida recruitment attempts. Board's decision that applicant did not form part of social group subject to persecution, as defined in leading Supreme Court authority, was reasonable. Amrane c. Canada (Ministre de la Citoyenneté et de l›Immigration) (Jan. 8, 2013, F.C., Simon Noël J., File No. IMM-4179-12) 233 A.C.W.S. (3d) 713. Industrial and Intellectual Property TRADEMARKS Likely to be confusion as matter of first impression Appeal from decision of Registrar of Trademarks rejecting opposition of appellant and allowing registration trademark by respondent. Respondent applied for registration of trademark ZENERGY BY/POUR SIMON CHANG & Design in association with certain sports clothing. Applicant opposed registration on basis of evidence that it had used trademark ENERGIE for similar wares. Registrar rejected applicant's argument that confusion existed between two trademarks. Appeal allowed. Registrar's conclusion that differences between trademarks sufficed to Page 15 CASELAW make confusion unlikely was result of a side-by-side comparison and constituted error in law. Registrar was required to apply mind of casual consumer somewhat in hurry with imperfect recollection of trademarks, who did not pause to give matter any detailed consideration or scrutiny, nor to examine closely similarities and differences between trademarks. Considering the evidence before registrar de novo, given strong resemblance between trademarks, there was likely to be confusion as matter of first impression. Registrar's decision was set aside and registrar was directed to refuse application by respondent. International Stars S.A. v. Simon Chang Design Inc. (Oct. 15, 2013, F.C., Douglas R. Campbell J., File No. T-1573-12) 233 A.C.W.S. (3d) 715. Taxation INCOME TAX Poor advice from accountant would not constitute extraordinary circumstances Taxpayer earned income in United States between 1999 and 2002. Taxpayer did not file tax returns in Canada in for 2000 and 2001 taxation years. Minister of National Revenue assessed taxpayer under Income Tax Act (Can.), finding arrears owing and levying late fines and penalties. On internal appeal taxpayer obtained partial relief and arrears of interest accruing between November 17, 2004 to November 13, 2007, were cancelled. After further review it was determined that no further relief would be granted. Taxpayer applied for judicial review of Minister's decision to deny him further penalty and interest relief. Application dismissed. Decision clearly articulated that taxpayer did not meet conditions for relief under inability to pay or financial hardship. Initial partial relief was not granted from arbitrary date, but rather relief was given from date on which taxpayer had provided substantially all requested information to facilitate review. Any poor advice from taxpayer's accountant would not constitute extraordinary circumstances justifying late filing. Medical condition of taxpayer arose after fact and did not affect late filing. Decision-makers at different levels were not wrong and independent review was provided. Reasons were transparent, clear and detailed. Decision amounted to reasonable exercise of discretion. Kotel v. Canada (Attorney General) (Oct. 8, 2013, F.C., Glennys L. McVeigh J., File No. T-130411) 233 A.C.W.S. (3d) 768. ONTARIO CIVIL DECISIONS Civil Procedure DEFAULT Deputy judge should not have ignored admission of liability of respondents under lease Appellant entered into four-year written agreement with respondent for used vehicle. Respondents failed to make lease payments. Appellant repossessed vehicle. Appellant terminated lease and sued for deficiency balance. Respondents failed to defend and were noted in default. Appellant's motion for assessment of damages and action were dismissed with suggestion that appellant engaged in deceptive and unfair practices contrary to Consumer Protection Act, 2002 (Ont.). Appeal allowed. Decision was set aside. Matter was referred back for assessment of appellant's damages on appellant providing further and better affidavit. Deemed admission by respondents of liability in law to appellant because of default meant respondents were admitting to liability to it in all respects. Respondents could not be alleging anything that would result in denial of liability including potential violation of provisions of Act. Deputy judge should not have ignored admission of liability of respondents under lease. Deputy judge misapprehended relevant evidence and made speculative inferences from evidence when there was no basis to do so, and factual errors amounted to palpable and overriding error. Deputy judge provided no notice to appellant that he was considering dismissal of claim or finding of no damages because of alleged applicability of Act notwithstanding admission of liability by respondents. There was lack of procedural fairness. Appellant should have been given opportunity to address concerns with provisions of Act. Action Auto Leasing & Gallery Inc. v. Crawford (Oct. 16, 2013, Ont. S.C.J., R.J. Nightingale J., File No. CV-13-107) 233 A.C.W.S. (3d) 581. DISCOVERY Press releases of parties did not detract from expected confidentiality Action was certified class proceeding. Plaintiffs claimed defendants were liable for misrepresentation under statutory secondary market liability regimes of provinces and territories. Plaintiffs alleged defendant SNC bribed government officials around world to secure contracts for projects financed by World Bank. Plaintiffs brought motion for production from SNC of documents, including negotiated resolution agreement between SNC and World Bank. Documents were created in course of World Bank sanction procedures. Motion dismissed. Communications that led to negotiated resolution agreement were prima facie privileged. It would cause considerable harm to access to justice and administration of justice to accept plaintiffs' narrow scope for settlement privilege. Litigation was commenced or was within contemplation was met. Communication was made with intention that it should not be disclosed www.lawtimesnews.com was met. Communication was to effect settlement. There was no express intention that communication should not be disclosed, but in circumstances of case were strongly indicative that parties to negotiations intended settlement discussions not to be disclosed and to be treated as confidential. Press releases of parties did not detract from expected confidentiality. Primary and predominant purpose of communications was to effect settlement. Policy argument for exception to settlement privilege was rejected. There was no express waiver of settlement privilege and no basis for implied waiver based on fairness or consistency. Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund (Trustees) v. SNC Group Inc. (Oct. 8, 2013, Ont. S.C.J., Perell J., File No. 12-CV-453236CP) 233 A.C.W.S. (3d) 582. Family Law COSTS Costs fixed at $19,000 as wife guilty of unreasonable conduct Matter was bifurcated and issues determined were dates of cohabitation and separation and severing of divorce from corollary relief proceedings. Wife refused to acknowledge that separation had taken place, which was completely unrealistic. It was determined that parties commenced cohabitation on July 1, 2005, and separated on October 15, 2009, and it was ordered that divorce could be severed from corollary relief and be granted once husband filed affidavit. Husband applied for costs. Application granted. Husband served offer to settle, but offer was not more successful than result at trial on issue of date of cohabitation. Offer did not attract mandatory full indemnity costs after service. However, since offer nearly mirrored result on main issue of date of separation, it was taken into account in determining costs. Wife took unreasonable position and was guilty of unreasonable conduct. Wife's financial circumstances were not taken into account in setting costs at this stage of proceedings. Husband's bill of costs was reasonable. Costs payable for first stage of trial were fixed at $19,000, inclusive of HST and disbursements, which was just over 80% of full indemnity costs. Costs were payable in any event of cause but enforcement of costs was stayed pending result at trial. O'Brien v. O'Brien (Oct. 25, 2013, Ont. S.C.J., J.P.L. McDermot J., File No. FC-10-35650-00) Additional reasons to 233 A.C.W.S. (3d) 169. 233 A.C.W.S. (3d) 675. Limitations DISCOVERABILITY Plaintiffs did not need to obtain expert opinion before determining they had cause of action Plaintiffs owned white plaster sculpture, and in 2000 plaintiffs loaned sculpture to defendant art gallery pursuant to loan agreement. Sculpture was exhibited at art gallery in fall 2001, and then it was put into storage. In October 2003, defendant had sculpture transported to art storage facility in Quebec. Defendant experienced financial problems, and in June 2004 it advised plaintiffs that it could no longer store sculpture and it wanted to return it to plaintiffs but plaintiffs did not accept its return. In November 2006, defendant had sculpture moved from storage in Quebec back to its facility in Ontario. Sculpture was not uncrated until September 2007, at which time damage to it was discovered. Defendant had conversation with plaintiffs' agent where damage to sculpture was brought to his attention. On October 19, 2007, defendant's director confirmed to plaintiffs' insurance broker, with "cc" to agent, that sculpture had been damaged. Plaintiffs issued statement of claim on November 19, 2009. Defendant counterclaimed for storage fees. Defendant claimed that action was statute-barred by Limitations Act, 2002 (Ont.). Defendant brought motion for summary judgment to dismiss plaintiffs' action and for judgment on counterclaim. Motion granted. As of October 19, 2007, plaintiffs' agent knew or ought reasonably to have known of damage to sculpture and knowledge of agent was imputed to plaintiffs. Litigation clock started to run from October 19, 2007, when defendant's manager confirmed to plaintiffs' insurance broker, with cc to plaintiffs' agent, that sculpture was in poor condition. Individual plaintiff, who was part-owner of sculpture, was experienced commercial litigation lawyer and he drafted statement of claim. Individual plaintiff was aware limitation clock was ticking. Individual plaintiff was imputed to have knowledge of plaintiffs' agent. Plaintiffs knew as of October 19, 2007, that sculpture was damaged and that it was in possession and control of defendant. Plaintiffs did not need to obtain expert opinion before determining that they had cause of action against defendant and they could not stop limitation period from running while they waited for expert report. Plaintiffs did not act with due diligence. On full appreciation of evidence and issues, court was capable of making dispositive findings by way of summary judgment and trial was not required. Two-year limitation period expired on October 19, 2009, and plaintiffs commenced action on November 19, 2009, and action was statute-barred. Defendant was entitled to amount claimed for storage costs and it was awarded judgment of $8,522.55. Longo v. MacLaren Art Centre Inc. (Nov. 6, 2013, Ont. S.C.J., DiTomaso J., File No. Barrie 091532) 233 A.C.W.S. (3d) 740. LT

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