Law Times

www.lawtimesnews.com Page 18 March 3, 2008 / Law TiMes FEDERAL COURT OF APPEAL Civil Procedure SummaRy JuDGmeNT Judge erred in dismissing motion for summary judgment Respondent admitted that software in question was subject to copyright and that its use of that software was infringement of that copyright. Motions judge dismissed motion for summary judgment without indicating why appellant was not entitled to injunction restrain- ing admitted infringement of its statutory monopoly. appellant was granted declaration that appellant's rights had been infringed. Order issued enjoining respondent from carrying on certain activities. Qad Inc. v. Stratford Holdings Corp. (Dec. 10, 2007, F.C.a., Nadon, Sexton and Pelletier JJ.a., File No. a-62-07) appeal from 154 a.C.w.S. (3d) 823 was allowed in part. Order No. 008/009/115 (4 pp.). Constitutional law DiSTRiBuTiON OF leGiSlaTiVe auTHORiTy It was not court's role to determine constitutionality of policies application judge correctly dis- missed appellant's challenge of validity of Notice of Exporters Se- rial No. 102 ("Notice 102") con- trolling exports of logs harvested from some private lands in British Columbia. Notice 102 was policy guideline which does not fetter exercise of Minister's discretion and as such was beyond reach of courts. Further, it was not role of courts to determine constitution- ality of policies. Timberwest Forest Corp. v. Canada (Dec. 7, 2007, F.C.a., Richard C.J., Decary and Nadon JJ.a., File No. a-108-07) appeal from 155 a.C.w.S. (3d) 583; 29 C.E.L.R. (3d) 28 dismissed. Or- der No. 008/009/119 (5 pp.). Social Welfare SOCial aSSiSTaNCe Appellant misinterpreted definition of "permanent disability" in Canada Student Financial Assistance Act application judge correctly found that appellant misinterpreted and misapplied provisions of Canada Student Financial assistance act, resulting in denial of application by respondent for Permanent Dis- ability Benefit. Respondent was le- gally blind and had Stargardt's dis- ease. as result of disability-related needs and restrictions, respondent could not pursue full-time studies. appellant incorrectly interpreted definition of "permanent disabil- ity" by replacing term "restrict" with more stringent standard of "prevent". Matter should be remit- ted to different medical officer for re-determination taking into ac- count both correct definition of "permanent disability" and appli- cation of s. 11(2) of Canada Stu- dent Financial assistance act. Marsden v. Canada (Minister of Human Resources and Skills Development) (Dec. 11, 2007, F.C.a., Nadon, Sexton and Pel- letier JJ.a., File No. a-507-06) appeal from 152 a.C.w.S. (3d) 347 dismissed. Order No. 008/009/114 (5 pp.). TAX COURT OF CANADA Judgments and Orders ReS JuDiCaTa Notice of appeal from tax assessment quashed on application of estoppel doctrine Respondent brought motion to quash notice of appeal from tax assessment. Notice of appeal ref- erenced tax issues for years when appellant qualified as an aboriginal person but became liable to pay tax when criteria for membership to his aboriginal band changed. appellant alleged Charter breach. Motion granted. Issues which ap- pellant sought to put before court were same issues he had already put before Federal Court of appeal and that were decided upon conclu- sively. To permit appeal to proceed would be inappropriate in light of doctrine of estoppel and result in abuse of process. Court had no ju- risdiction to grant Charter remedy. Wetzel v. Canada (Nov. 22, 2007, T.C.C., Campbell J.T.C.C., File No. 2007-1155(IT)G) Order No. 007/344/127 (15 pp.). ONTARIO CIVIL CASES arbitration NaTuRal JuSTiCe Reviewing judge did not err in con- cluding arbitrator's refusal to grant adjournment request was unfair Father appealed decision seting aside arbitrator's award of child and spousal support pursuant to s. 46(1)6 of arbitration act, 1991 (Ont.). Reviewing judge concluded arbitrator's refusal to grant mother's request for adjournment was unfair. appeal dismissed. Reviewing judge did not misapprehend evidence. Judge's findings and inferences were not clearly wrong, unreason- able, or unsupported by evidence. Refusal of a party's request for ad- journment only upheld where par- ty could readily obtain information it was seeking for itself or had an opportunity to meet and counter information tendered. Kucyi v. Kucyi (Nov. 7, 2007, Ont. C.a., weiler, MacPher- son and Rouleau JJ.a., File No. C46358) Order No. 007/317/002 (9 pp.). Civil Procedure DiSCOVeRy No reason to doubt correctness of dismissal of motions to strike summons and notice of examination of non-parties Defendants E.M.S. and T.B. had brought motion to dismiss plain- tiffs' claim. Counsel for plaintiffs served summonses demanding at- tendance of w. and B. and notice of examination on counsel for T.B.. E.M.S. and T.B. brought motions to strike summons to winesses and notice of examination. Motions judge dismissed motions to strike summons to witnesses and notice of examination of non-parties and ordered deponents to attend to be examined as witnesses in pending motion to dismiss action. Mo- tions judge applied principle of relevance to motion. No reason to doubt correctness of motions judge's order. D'Addario v. Environmental Man- agement Solutions Inc. (Dec. 10, 2007, Ont. Div. Ct., Kiteley J., File No. 307/07; 446/07) Leave to appeal from 158 a.C.w.S. (3d) 30 was refused. Order No. 007/351/132 (12 pp.). Damages PeRSONal iNJuRieS Plaintiff with cervical spine injury awarded $400,000 for loss of com- petitive advantage Plaintiff sustained major injury in her cervical spine as result of accident. There was insufficient evidence to award loss of income damages to plaintiff from time she commenced receiving long-term disability in June 2000 at age 42 un- til her age of retirement. For years after accident, she was working 60 hours plus per week at very stressful job. Her doctor did not recommend she cease working. Plaintiff could have continued working as public servant. Plaintiff did suffer loss of competitive advantage because of injuries sustained by her and would suffer economic loss because she could no longer work 60 hours per week and her ability to compete for employment had been impaired. She could no longer accept jobs that demanded lot of concentration and as stressful as Executive assistant. Fact that she was unable to work at Executive 1 or 2 levels in Public Ser- vice was compensable in damages. Damages for loss of competitive ad- vantage awarded at $400,000. St.Prix-Alexander v. Home Depot of Canada Inc. (Jan. 4, 2008, Ont.S.C.J., Manton J., File No. 01-CV-16871) Order No. 008/009/082 (36 pp.). Family law CuSTODy No basis to interfere with parent- ing regime imposed by trial judge Trial judge did not err in ordering that three girls, aged nine, eight and five, reside with their father dur- ing week and with their mother on weekends. Trial judge did not err in principle by failing to address appellant's alternative proposal that if she returned from Ottawa to live in Toronto, she should be awarded sole custody of children. appellant's focus throughout trial and in her supplementary submis- sions involved moving children to Ottawa. No basis to alter or interfere with terms of parenting regime imposed by trial judge. Andrade v. Kennelly (Dec. 19, 2007, Ont. C.a., winkler C.J.O., Cronk and Epstein JJ.a., File No. C45695) appeal from 149 a.C.w.S. (3d) 265; 3 R.F.L. (6th) 125 dismissed. Order No. 008/008/048 (2 pp.). municipal law liCeNCeS Toronto Licensing Tribunal's refusal to grant adjournment was serious issue to be tried applicant brought motion to stay revocation of his license to operate and own a tow truck by Toronto Li- censing Tribunal pending hearing of application for judicial review. applicant had been convicted of various infringements and charged with speeding. Motion granted. Tri- bunal's refusal to grant adjournment was a serious issue to be tried. Crite- rion of irreparable harm was estab- lished because applicant had worked as a tow truck driver for eleven years and had no other marketable skills and if stay was not granted he would be in serious financial straits. Bal- ance of convenience favored appli- cant because of institutional interest in procedural fairness and because defendant adjourned matter and re- sumption did not occur for one year throughout which applicant con- 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. Single or multiple copies of the full text of any case digested in this issue can be obtained by: i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. COURT DECISIONS When the entire firm has the same goal, success comes naturally. Une équipe avec un objectif commun : le succès dans la poche! SMSS.COM CHARLOTTETOWN ST. 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