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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Administrative Law FREEDOM OF INFORMATION Judge erred in failing to consider application of s. 53(2) of Access to Information Act (Can.) This was appeal from judge's de- cision dismissing appellant's ap- plication for judicial review and awarding costs against appellant. Appellant submitted 400 ac- cess to information requests to respondent. Respondent failed to respond to appellant's re- quests within 30 days of receipt as required by s. 7 of Access to Information Act (Can.), and was deemed to have refused to give access to appellant. Appel- lant submitted 389 complaints to information commissioner. Commissioner was of view that respondent had been inundated and overwhelmed by volume of access requests so that it required reasonable amount of time to respond. Commissioner recom- mended that respondent respond to all of access requests by speci- fied date. Appellant commenced application for judicial review. As of commitment date respon- dent had not responded to 38 access requests but it delivered responses five days before ap- plication for judicial review was heard. Judge found that applica- tion for judicial review was moot because all of records requested by applicant had been disclosed at time of hearing. Judge exer- cised discretion to hear applica- tion for judicial review but dis- missed application and awarded costs to respondent and com- missioner to be assessed under highest column of table to Tariff B of Federal Court Rules (Can.). Appeal allowed in part. As mat- ter of law judge had complete discretion to dismiss application for judicial review on ground of mootness and judge committed no reviewable error in exercise of discretion. Once all of access re- quests were responded to, rights of parties in relation to responses could not be affected by any de- cision in judicial review applica- tion. Judge erred in law in fail- ing to consider application of s. 53(2) of Act and appellant was awarded costs of Federal Court proceeding assessed in accor- dance with midpoint of column I of table to Tariff B. Statham v. Canadian Broadcast- ing Corp. (Nov. 22, 2010, F.C.A., Dawson, Trudel and Mainville JJ.A., File No. A-458-09) Deci- sion at 181 A.C.W.S. (3d) 200 was varied. 195 A.C.W.S. (3d) 906 (43 pp.). FEDERAL COURT Contempt Of Court GROUNDS Respondent did not have knowledge of registration of tribunal's order Respondent was white suprema- cist who posted racist ideas on In- ternet. Canadian Human Rights Tribunal ordered respondent to cease communicating matters likely to expose persons to ha- tred or contempt on prohibited grounds. Tribunal's order was made order of Federal Court by filing certified copy with registry. Respondent did not remove hate messages from Internet and con- tinued to post fresh material after order registered. Canadian Hu- man Rights Commission moved for order finding respondent in contempt. Motion dismissed. To find someone in contempt, person must have knowledge of registration of order. All of events relied on by commission occurred before respondent had knowledge of registration. Fur- ther, order did not make it suf- ficiently clear that respondent re- quired to remove from Internet material found hateful by tribu- nal and material of like nature posted to that time. Warman v. Canadian Human Rights Commission (Nov. 29, 2010, F.C., Harrington J., File No. T-293-07) 195 A.C.W.S. (3d) 998 (16 pp.). Evidence OPINION EVIDENCE Applicant failed to demonstrate necessity of additional expert reports Motion by applicant for leave, pursuant to s. 7 of Canada Evi- dence Act and Rule 52.4 of Fed- eral Court Rules (Can.), allowing it to deliver eight expert witness reports and to call authors of those reports at trial. Applicant commenced impeachment ac- tion and defendant commenced infringement action. During case management conferences, neither party expressed inten- tion to call more than five expert witnesses. Subsequently, appli- cant served eight expert reports regarding validity of patent. Mo- tion dismissed. Applicant failed to demonstrate that additional number of expert reports was necessary for determination of issues. Applicant's arguments regarding need for eight expert witnesses were principally based on fact that patent issues have February 14, 2011 • Law Times COURT DECISIONS 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. 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: These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. 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. been dissected and segmented, which had effect of artificially inflating number of issues lead- ing to duplication and overlap. Apotex Inc. v. Sanofi-Aventis (Dec. 14, 2010, F.C., Boivin J., File No. T-644-09; T-933-09) 195 A.C.W.S. (3d) 927 (15 pp.). Intellectual Property Industrial And TRADEMARKS There was likelihood of confusion between STOP DIETE and respondent's trademarks Appeal by applicant from or- der by member of Trade-marks Opposition Board refusing ap- plicant's application for regis- tration of trademark. Applicant sought to register trademark STOP DIETE. Respondent opposed application. Member concluded that respondent's unregistered trademarks STOP POIDS AND STOP WEIGHT had already been used, and that there was likelihood of confu- sion between STOP DIETE and respondent's trademarks. Appeal dismissed. It was rea- sonable for member to find that there was likelihood of confu- sion between trademarks. Ap- plicant failed to demonstrate that ideas suggested by trade- marks were totally different. Nautilus Plus Inc. v. Centres Stop Inc. (Nov. 5, 2010, F.C., Harrington J., File No. T-229- 10) 195 A.C.W.S. (3d) 1127 (18 pp.). TAX COURT OF CANADA Taxation INCOME TAX Ex gratia payments not deductible as support Appellant and wife entered sepa- ration agreement in which ap- pellant was to pay $2,500 per month. Appellant alleged ap- pellant made ex gratia payments for children pursuant to agree- ment. Respondent disallowed all of support amounts claimed by appellant. Respondent's position was appellant never made sup- port payments to former spouse. Appeals were dismissed. Appel- lant did not establish appellant made payments as claimed for support pursuant to agreement. There was no basis on which to conclude that payments were support amounts. Appellant did not adduce evidence to substan- tiate amounts paid were for sup- port for ex spouse and children. Appellant did not substantiate how appellant became entitled to payments made by third parties www.lawtimesnews.com that appellant had authority for directing that those payments be made to ex spouse or how pay- ments were characterized on cor- porate records and books and ac- counted for in corporate returns. Ex gratia payments could not be deductible because they were not compellable payments pursuant to wording of agreement. Palonek v. Canada (Dec. 1, 2010, T.C.C., Campbell J., File No. 2007-3798(IT)G) 195 A.C.W.S. (3d) 1184 (22 pp.). Taxpayer continued to be Canadian resident when he left Canada Appeal by taxpayer from rede- terminations made by Minister. Taxpayer left Canada to pursue post-secondary studies in 1994 and remained out of country. Taxpayer claimed that he intend- ed to return to Canada when his program finished in 2011. Tax- payer filed income tax return for 2005 and 2006 taxation years, and claimed Canada Child Tax Benefits. Canada Revenue Agency redetermined taxpayer on basis that he did not qualify for benefits because he was not resident in Canada as required by paragraph (c) of definition of "eligible individual" in s. 122.6 of Income Tax Act (Can.). Ap- peal allowed. Matter was referred back to Minister for reconsidera- tion and redetermination. Tax- payer continued to be Canadian resident when he left Canada in 1994. Crown failed to point to any particular point since when taxpayer's circumstances changed materially enough to constitute change in residence. Perlman v. Canada (Dec. 23, 2010, T.C.C., Boyle J., File No. 2009-1086(IT)G) 195 A.C.W.S. (3d) 1191 (18 pp.). ONTARIO CIVIL CASES Compensation For Victims Of Crime ELIGIBILITY Dismissal of compensation claim set aside Appeal by victim from decision by board dismissing his claim for compensation. Victim was as- saulted in his home. Victim sus- tained serious injuries resulting in permanent disabilities. Board concluded that because victim had been drug dealer, inherent risks of violence associated with such behaviour significantly contributed to assault. Appeal allowed. Order was set aside and matter was remitted to board for new hearing. Board failed to properly consider proportional- ity between conduct said to be contributory and injuries sus- tained. Board also failed to con- sider reduced award as opposed to complete denial of recovery. It could not be said that decision would have been same had s. 17(1) of Compensation for Vic- tims of Crime Act (Ont.), been correctly applied. Mark v. Ontario (Criminal In- juries Compensation Board) (Dec. 2, 2010, Ont. S.C.J. (Div. Ct.), Molloy, Swinton and Her- man JJ., File No. 483/10) 195 A.C.W.S. (3d) 991 (12 pp.). Employment WRONGFUL DISMISSAL Employee was not constructively dismissed Action by employee for damages for constructive dismissal. Em- ployee was employed with com- pany when company's shares were acquired by another com- pany. Employee's base salary with old company was $202,000, plus participation in bonus structure. Plaintiff was offered employ- ment with new company at base salary of $182,182.20 plus an- nual car allowance of $10,000. Employee requested written compensation plan. Employee's request was denied. Action dis- missed. Employee was not con- structively dismissed. Reason- able person in same situation as employee would not have con- sidered failure to deliver written compensation plan fundamental breach of essential term of em- ployment contract. It was not implied or expressed term of contract that employee would be provided with written compen- sation plan. Mocle v. Oracle Corp. of Canada Inc. (Dec. 17, 2010, Ont. S.C.J., Hoy J., File No. CV-08-368192) 195 A.C.W.S. (3d) 1027 (9 pp.). Family Law SUPPORT Expense of boarding school was necessary in relation to child's best interests Application by mother for or- der requiring father to pay for 50% of expense associated with live-in treatment centre. Parties married, had child and separat- ed in 1995 when child was six months of age. Child was cur- rently 15 years of age. Child was not performing academically at grade level, was diagnosed with attention deficit hyperactive dis- order and oppositional defiant disorder, was severely addicted to marijuana, was expelled from school and had been subject of criminal charges. Mother sought contribution from father toward