Law Times

www.lawtimesnews.com Page 14 January 28, 2008 / Law Times SUPREME COURT OF CANADA Appeal POWERS OF APPELLATE COURT Court of Appeal erred in entering acquittal based on speculation about possible explanation for accused's conduct Accused convicted of attempting to obstruct justice. Crown alleged that accused attempted to falsify documents after fire. Conviction set aside on appeal on basis that verdict unreasonable. Court of Appeal concluded accused's con- duct after fire equally consistent with another rational conclusion. Crown's appeal allowed and con- viction restored. At trial, accused offered explanation for conduct which was rejected by trial judge. Not open to Court of Appeal to acquit based on speculation about possible explanation contradicted by accused's own testimony. R. v. Grover (Nov. 22, 2007, S.C.C., Bastarache, Binnie, De- schamps, Fish, Abella, Char- ron and Rothstein JJ., File No. 31808) Appeal from 72 W.C.B. (2d) 206 allowed. Order No. 007/330/001 (8 pp.). FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Tribunal breached procedural fairness in removal of applicants from office Tribunal decided to remove ap- plicants from office after hearing on allegation of corrupt election practices. Hearing was 15 moths after election. No investigation was conducted prior to hearing. Tribunal majority permitted ad- ditional affidavit evidence to be filed and refused to require de- ponents to submit themselves to cross-examination. Application for judicial review was allowed. Decision was set aside. Tribunal exceeded jurisdiction. Tribunal had authority to make recom- mendation to band council. Ap- plicants were denied procedural fairness. Reasonable apprehen- sion of bias arose from manner in which hearing was conducted. Tribunal breached procedural fairness in majority's pre-empto- ry refusal to provide reasons for decision over strong objections of applicants. Standinghorn v. Sweet Grass First Nation (Nov. 2, 2007, F.C., Mos- ley J., File No. T-899-07) Order No. 007/324/029 (22 pp.). FEDERAL COURT OF APPEAL Civil Procedure PARTIES Not plain and obvious that association did not have public interest standing Respondent, Canadian Generic Pharmaceutical Assn., brought application seeking determina- tion of vires of recently enacted amendment of food and drug regulations (Can.) by the Regu- lations Amending the Food and Drug Regulations (New Data Protection Regulations). Mo- tions judge did not proceed on wrong principle of law in find- ing that application should not be struck, as it was not plain and obvious that respondent did not have public interest standing. Also, motions judge did not err in allowing Canadian research- based pharmaceutical companies leave to intervene. Canadian Generic Pharmaceuti- cal Assn. v. Canada (Governor in Council) (Nov. 27, 2007, F.C.A., Noel, Sexton and Trudel JJ.A., File No. A-97-07) Appeal from 155 A.C.W.S. (3d) 304 dis- missed. Order No. 007/345/022 (7 pp.). Industrial And Intellectual Property PATENTS Appeal from refusal to prohibit issuance of notice of compliance dismissed as moot June 5 order dismissed Eli Lilly's application for order prohibit- ing minister of health from is- suing notice of compliance to Novopharm for its 2.5 mg, 5 mg, 7.5 mg, 10 mg and 15 mg olanzapine tablets. After June 5 order, minister granted NOC to generic company Novop- harm. Court has consistently held that once notice of com- pliance had been issued, patent holder's appeal from application to prohibit issuance of notice of compliance will be dismissed due to mootness. Eli Lilly's re- quest to revisit law with respect to patent holder's right to appeal otherwise moot notice of com- pliance proceeding was rejected. Novopharm's motion to dismiss appeal on ground of mootness was granted. Eli Lilly Canada Inc. v. No- vopharm Ltd. (Nov. 6, 2007, F.C.A., Sexton, Ryer JJ.A. and dissenting - Pelletier J.A., File No. A-274-07) Appeal from 158 A.C.W.S. (3d) 642; 58 C.P.R. (4th) 214 dismissed. Order No. 007/324/045 (28 pp.). Taxation INCOME TAX Educational institution in United States was not qualifying university Reassessment denied tuition and education credits claimed by ap- pellant on behalf of son because educational institution son at- tended in United States did not qualify as university outside Canada or designated education- al institution. Institution did not confer bachelor degree, but con- ferred associates degree after two year undergraduate program. Tax Court upheld reassessment. Ap- peal was dismissed. Tax Court judge came to correct conclu- sion. Expression "university out- side of Canada" in s. 118.5 of Income Tax Act (Can.), referred to educational institution that conferred degree usually granted by universities. Educational in- stitution was not qualifying uni- versity. Klassen v. Canada (Oct. 26, 2007, F.C.A., Linden, Noel and Ryer JJ.A., File No. A-601-05) Ap- peal from [2006] 1 C.T.C. 2179; 2005 D.T.C. 1720 dismissed. Order No. 007/317/226 (24 pp.). ONTARIO CIVIL CASES Appeal FRESH EVIDENCE Fresh evidence admitted based on breakdown in communication between counsel Serious breakdown in commu- nication between Ontario coun- sel for appellant and instructing solicitors in Quebec resulted in material that had now been produced before Court of Ap- peal not being produced on motion for summary judgment. That material was clearly signifi- cant and potentially determina- tive of outcome on summary judgment motion. Appellant's unchallenged explanation for breakdown in communication provided adequate justifica- tion for court receiving as fresh evidence that could have been available through exercise of due diligence. There was exceptional circumstances in this case to al- low fresh evidence. Propjet Management Ontario Inc. v. Pascan Aviation Inc. (Dec. 3, 2007, Ont. C.A., Doherty, Moldaver and Gillese JJ.A., File No. C47347) Appeal from 157 A.C.W.S. (3d) 951 allowed. Or- der No. 007/344/070 (3 pp.). Assessment PROCEDURE Time limit in s. 331(9) of Municipal Act (Ont.) interpreted as mandatory New construction notice in- creased taxes. Applicant sought order quashing new construction notice issued by town and recal- culated property tax bills. Appli- cation was dismissed. Interpreta- tion of s. 331(9) of Municipal Act, 2001 (Ont.), that treated 60-day requirement as directory satisfied test. Interpretation did not detract from principle that taxpayer had to be informed of amount and basis of taxation imposed. Treating time-limit as mandatory would defeat pur- pose of s. 331 of Municipal Act, 2001. There was no compelling reason why failure to observe 60-day limitation period should have result of precluding munici- pality from applying s. 331 of Municipal Act, 2001 to taxation of eligible properties. Interpre- tation of time-limit as directory did not adversely affect right of taxpayer to initiate complaint under s. 331(11) of Municipal Act, 2001. Neamsby Investments Inc. v. Markham (Town) (Nov. 23, 2007, Ont.S.C.J., Wilton-Siegel J., File No. 05-CV-078186-00) Order No. 007/330/066 (8 pp.). Contempt Of Court PUNISHMENT Replacing warrant of committal with one in proper form not tantamount to reconsideration of sentence C was sentenced to imprison- ment for 12 months for con- tempt. Wife was sentenced to imprisonment for 8 months for contempt. Conditional sentences were rejected. Wife's sentence was to be served immediately follow- ing C's release. Warrant of com- mittal was signed. C was taken into custody. C was granted pa- role and released from custody. Warrant was not in form pro- vided under Rules of Civil Proce- dure (Ont.). Application for ju- dicial review was allowed. Fresh warrant of committal was signed ordering C arrested and detained with no eligibility for parole or remission unless further ordered by court. It was court's intention C serve entire sentence and for court to maintain supervision over C and wife. There was no injustice or unfairness to C and no reasonable apprehension of bias. Replacing warrant of com- mittal with one in proper form was not tantamount to reconsid- eration of sentence. To fail to do so would bring administration of justice into disrepute. Parole Board did not have jurisdiction to grant C parole. Mendlowitz & Associates Inc. v. Chiang (Trustee of ) (Oct. 25, 2007, Ont.S.C.J. Commercial List, Lax J., File No. 00-CL- 3835) Order No. 007/323/164 (12 pp.). Courts ABUSE OF PROCESS Respondent attempted to frustrate orderly conduct of lawsuit Petitioner filed for petition for divorce from wife. Petitioner was now around the age of 95 and residing in nursing home. Wife died on June 21, 2003 and pro- ceeding had been continued by her daughter G as her estate trust- ee. G had been heavily involved in proceeding and was only ben- eficiary under her mother's will. Record demonstrated that G was unwilling to conduct and par- ticipate in proceeding in manner consistent with process of court and had continued to attempt to frustrate orderly conduct of lawsuit. Petitioner's motion to strike pleadings of respondent was granted. Teperman v. Teperman Estate (Nov. 26, 2007, Ont. S.C.J., Cullity J., File No. 00-FP-262710 FIS) Or- der No. 007/333/074 (4 pp.). Civil Procedure SETTLEMENT Appellants entitled to withdraw offer notwithstanding stated irrevocability Litigation was over partnership among family members to de- velop property. Appellants were some of defendants in action. Appellants' 2004 offer to settle indicated it would remain irre- vocable until one minute after commencement of trial. Appel- lants made offer in 2006 and revoked 2004 offer. Respondents accepted 2004 offer indicating it could not be revoked. Respon- dent brought motion to enforce 2004 offer. Motions judge held settlement was to be enforced. Appeal was allowed. Motions judge erred in interpretation of Rule 49.04(1) of Rules of Civil Procedure (Ont.). 2006 offer complied with requirements of Rule 49.04(1) and appellants were entitled to withdraw 2004 offer notwithstanding it stated it was irrevocable. 363066 Ontario Ltd. v. Gullo (Nov. 16, 2007, Ont. C.A., Cronk, Gillese and Armstrong JJ.A., File No. C46748) Order No. 007/323/156 (3 pp.). Debtor And Creditor RECEIVERS Receiver in position to protect interests of all stakeholders Case Law CaseLaw CaseLaw CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. 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