Law Times

Law Times • March 16, 2015 Page 15 www.lawtimesnews.com issued in October 2013, which barred Ministers from proceed- ing with inadmissibility inquiry. Ministers' decision to bring un- successful motion resulted in additional costs to foreign na- tional. Court exercised discre- tion and awarded costs of $3000 to foreign national. Almrei v. Canada (Minister of Citizenship and Immigration) (Oct. 23, 2014, F.C., Richard G. Mosley J., File No. IMM-5885- 13) 247 A.C.W.S. (3d) 650. SELECTION AND ADMISSION Officer did not properly con- sider evidence of hardship that would be caused to brother Foreign national was citizen of Sri Lanka of Tamil ethnicity who made unsuccessful refugee claim. Foreign national applied for exemption from permanent residency requirements on hu- manitarian and compassion- ate (H&C) grounds. Foreign national had two brothers in Canada who were both sup- portive of him remaining in this country and had provided letters to that effect. Younger brother suffered from major de- pressive disorder, diabetes, and high blood pressure, was unable to work and received Ontario Disability Support Program financial assistance. Foreign national resided with younger brother and assisted him with cooking and cleaning and took him to medical appointments. Younger brother indicated that there was no one else to assist him and that his condition had significantly improved since foreign national had moved in with him. Foreign national's submissions included informa- tion concerning shortage of homecare in Ontario, however, no information had been sub- mitted to indicate that such care had been denied to foreign na- tional's younger brother or that his elder brother or other fam- ily were unwilling or unable to care for him. Officer questioned extent of care for brother actu- ally required, given foreign na- tional's employment in two jobs and his other activities. Officer concluded that evidence did not support claim that foreign national had become estab- lished in Canada to extent that severing his ties here amounted to unusual and undeserved or disproportionate hardship. Of- ficer denied H&C application and foreign national applied for judicial review. Application granted. Officer's conclusion on establishment in Canada was unreasonable because she did not properly consider evi- dence of hardship that would be caused to foreign national's brother if foreign national were to return to Sri Lanka. Somasundaram v. Canada (Min- ister of Citizenship and Immigra- tion) (Dec. 3, 2014, F.C., Cecily Y. Strickland J., File No. IMM- 1389-14) 247 A.C.W.S. (3d) 661. Industrial and Intellectual Property TRADEMARKS New evidence would have materi- ally affected board's decision Applicant owned trademark GIA. Applicant objected to reg- istration of trademark GHI by respondent for use in association with same wares and services, diamond grading, issuing dia- mond grading certificates, edu- cation in field of gemology and other wares and services in field of gemology. Board found that respondent established there was no reasonable likelihood of con- fusion and rejected applicant's opposition. Applicant appealed and filed new evidence on ap- peal. Appeal allowed. New evi- dence addressed whether mark was well known, its reputation, length of use and relevant con- sumer market. New evidence of use of trademark GIA and GIA's reputation was more sig- nificant and different in several ways than evidence provided to board. New evidence was of sufficient quality and probative value and would have changed factual basis of board's decision. New evidence would have mate- rially affected board's decision. New evidence demonstrated that applicant's GIA mark was well known in Canada at mate- rial dates. GIA mark acquired high degree of distinctiveness through its use and had strong reputation. GIA mark had been in use much longer than board found. Parties' wares, services, businesses and trade were same or there was direct overlap. Two marks were very similar. Degree of resemblance was strong and, as matter of first impression, dif- ferences were not sufficient to avoid confusion. GIA mark was not inherently distinctive but it had been used over significant period of time in Canada, which resulted in its enhanced reputa- tion in industry and consumer market. Based on consideration of new evidence and evidence that was previously submitted, applicable case law and factors set out in s. 6(5) of Trademarks Act (Can.), respondent had not met burden of establishing that there was no likelihood of confusion between two trademarks. Gemological Institute of America Inc. v. Gemology Headquarters International LLC (Dec. 2, 2014, F.C., Catherine M. Kane J., File No. T-2212-12) 247 A.C.W.S. (3d) 663. ONTARIO CIVIL DECISIONS Civil Procedure COSTS Lack of service on solicitors of offer to settle did not render offer nullity Principals of plaintiff agreed with principal of defendant that they would jointly purchase factory and convert it into self- storage facility. Plaintiff was incorporated for purpose of acquiring and converting prop- erty for joint venture. Principals of plaintiff agreed to put up en- tire purchase price and plaintiff would become sole owner of property pending completion of project. Parties entered into put/ call agreement where plaintiff could force defendants to pur- chase property through put and defendants could force plaintiff to sell property through call. Agreement provided that if par- ties could not agree on purchase price then agreed upon apprais- er would be retained and in ab- sence of manifest error, apprais- er's determination of fair market value would bind parties. Plain- tiff exercised put. Appraiser concluded that fair market value of property was $7.3 million but defendants refused to accept appraisal. Plaintiff brought this action. Defendants attempted to introduce report of different appraiser but trial judge exclud- ed evidence of defendants' ap- praiser and made mid-trial rul- ing that appraiser parties agreed to did not make manifest error in arriving at fair market value. Trial judge awarded plaintiff specific performance of put/call agreement. Plaintiff was award- ed costs of $415,000 plus HST, partly on substantial indemnity basis based on offer to settle. Defendants appealed. Appeal dismissed. Trial judge did not err in finding that lack of formal service on defendants' solicitors of plaintiff 's offer to settle did not render offer nullity. Trial judge was entitled to take offer to settle into account in deter- mining costs. Trial judge was entitled to exercise discretion to increase amount based on de- fendants' conduct that unnec- essarily prolonged trial. There was no basis for interfering with quantum of costs awarded. Matthew Brady Self Stor- age Corp. v. InStorage Limited Partnership (Dec. 3, 2014, Ont. C.A., Doherty J.A., R.A. Blair J.A., and M. Tulloch J.A., File No. CA C57707) Decision at 236 A.C.W.S. (3d) 620 was affirmed. 247 A.C.W.S. (3d) 715. Employment WRONGFUL DISMISSAL Dismissing plaintiff for arriving late was grossly disproportionate response Plaintiff was employed by res- taurant for 29 years. For first 28 years owners of restaurant were plaintiff 's brother and sister-in-law. Defendant then purchased restaurant. Defen- dant dismissed plaintiff from employment claiming just cause including allegations of chronic lateness, alcoholism and dis- courteous nature. Reason plain- tiff was given on day of dis- missal was that he arrived late for work. Plaintiff was 51 years old. Plaintiff brought action for wrongful dismissal. Trial pro- ceeded in defendant's absence. Action allowed. Plaintiff was en- titled to reasonable notice of 15 months. Plaintiff proved claim for wrongful dismissal. There was no cause for plaintiff 's dis- missal. Allegations of chronic lateness or failure to show up for work was contradicted by defendant's own records. Sworn testimony to contrary of allega- tion of excessive alcoholism was accepted. Plaintiff debunked claim that he was discourteous to clients. Dismissing plain- tiff for arriving late was grossly disproportionate response to such misconduct. Plaintiff was not senior or skilled employee. Plaintiff made reasonable efforts to find alternate employment but was not successful. Given plain- tiff 's age, experience and quali- fications it might be difficult for him to find alternate employ- ment. There was no assessment for non-pecuniary discrimina- tory damages because there was no evidence that defendant dis- criminated against plaintiff on prohibited ground. Violo v. Delphi Communications Inc. (Dec. 4, 2014, Ont. S.C.J., Chapnik J., File No. CV-12- 456306) 247 A.C.W.S. (3d) 586. Limitations REAL PROPERTY Relationship between investor and mortgagee did not give rise to fiduciary duty Investor purchased second mortgage on home from mort- gagee as investment. Mortgagor fraudulently informed mortgag- ee that balance of first mortgage on her home was $83,000 when it really exceeded $200,000. Mort- gagee purchased title insurance and assigned insurance policy to investor when she purchased mortgage. Investor became aware of mortgagor's fraud in 2008 but renewed second mort- gage on multiple occasions. In 2010 mortgagor made assign- ment in bankruptcy. First mort- gagee sold home under power of sale, which yielded insufficient funds to pay off first mortgage and left nothing for investor. In 2011 investor brought action seeking damages for negligence, breach of contract, and breach of fiduciary duty and order that insurer cover her loss under title insurance policy. Mortgagee brought motion for summary judgment on basis that action was statute-barred pursuant to Limitations Act, 2002 (Ont.). In- surer brought motion for sum- mary judgment on basis that title insurance policy excluded recovery for any loss or damage that arose under first mortgage. Motions were granted and ac- tion was dismissed. Investor appealed. Appeal dismissed. Motion judge did not err in in- terpretation of insurance policy and in dismissing claim against insurer. Clear language of insur- ance policy excluded plaintiff 's loss. Motion judge did not make palpable and overriding error in finding that plaintiff discov- ered claim on or before April 3, 2008. Relationship between investor and mortgagee did not give rise to fiduciary duty. Inves- tor's claim against mortgagee was based in negligence and contract and Limitations Act governed investor's claim. Real Property Limitations Act (Ont.), did not apply. Action against mortgagee was statute-barred and motion judge correctly dis- missed it. Zabanah v. Capital Direct Lend- ing Corp. (Dec. 5, 2014, Ont. C.A., R.A. Blair J.A., David Watt J.A., and P. Lauwers J.A., File No. CA C58755) Decision at 240 A.C.W.S. (3d) 190 was af- firmed. 247 A.C.W.S. (3d) 685. Professions PHARMACISTS Mandatory penalties were profes- sional not criminal and were valid Pharmacist worked at grocery store where T worked as cashier. Pharmacist and T began social- izing and then developed rela- tionship. Pharmacist continued to fill T's prescriptions. When em- ployer became aware of relation- ship, pharmacist was suspended from work and he was then fired. Following investigation, respon- dent college referred allegations of professional misconduct and sexual abuse to discipline com- mittee. Pharmacist was charged with engaging in sexual abuse of patient and he pleaded guilty. Normally pharmacist's licence to practice pharmacy would have been mandatorily and perma- nently revoked pursuant to s. 51(5) of Health Professions Procedural Code (Ont.). However, pharma- cist challenged constitutionality of mandatory licence revocation provisions. Pharmacist sought declaration that ss. 1(3), 1(4), 51(5) and 72(3) of Code were unconsti- tutional. Application dismissed. Attorney General was estopped from raising issue of court's ju- risdiction. Attorney General's application for consolidation was dismissed and that time jurisdic- tional issue raised by Attorney General was litigated. Applying issue estoppel would not cause injustice. Mandatory revocation provisions of Code did not violate division of powers outlined in ss. 91 and 92 of Constitution Act, 1867 (UK). In pith and substance provisions concerned profession- al regulation of Ontario pharma- cists and they were not aimed at prohibiting inappropriate sexual relations for purpose of impos- ing sexual morality. Purpose of mandatory revocation provi- sions of Code was protection of public by imposition of clear and unequivocal standards of profes- sional behaviour. Legal effects of mandatory revocation provisions mirrored purpose of provisions. Provisions made it offence for health care professions to sexually abuse patients. Any sexual activ- ity led to mandatory revocation of licence. Provisions fell within am- bit of Ontario's power to regulate health professions under s. 92(13) of Act. Parliament did not have monopoly over morality. There was need for f lexibility in division of powers cases. Mandatory pen- alties were professional penalties, not criminal ones and were valid. Sections 1(3), 1(4), 51(5) and 72(3) of Code were intra vires Province of Ontario and were not contrary to division of powers outlined in ss. 91 and 92 of Act. Hanif v. Ontario (Nov. 21, 2014, Ont. S.C.J., Mew J., File No. CV-12-448727) 247 A.C.W.S. (3d) 698. LT CASELAW

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