Law Times

Law Times • February 28, 2011 protest activity planned around G20 summit. In September 2010 he was charged with fail- ing to comply with his recogni- zance and with failing to com- ply with probation. In October 2010 he was charged with two counts of intimidation of justice participation. Complaint that resulted in this charge was made by two Assistant Crown Attor- neys who were involved in anti- gang initiative. Accused claimed that by having Crown prosecute him there was reasonable appre- hension of bias, appearance of confl ict of interest and appear- ance of unfairness. Application dismissed. Th ere was neither reasonable apprehension of bias or appearance of confl ict of interest if Crown, who was employed by Ministry, pros- ecuted case against him. Crown agreed that accused would not be prosecuted by Crown from anti-gang initiative. Crown who would prosecute this case would be appointed from an- other region in Ontario. Th ere was neither Crown misconduct nor abuse of process by Min- istry that required its removal from this prosecution. R. v. Hundert (Dec. 7, 2010, Ont. S.C.J., Kelly J., File No. 225/10-MO) 91 W.C.B. (2d) 723 (9 pp.). FEDERAL Intellectual Property COURT OF APPEAL Industrial And PATENTS Application judge properly held that allegations of invalidity not justified Applications judge granted ap- plications brought by respon- dent to prohibit Minister of Health from issuing Notice of Compliance ("NOC") to ap- pellant generic pharmaceutical companies in respect of each of appellants' generic version of drug containing escitalopram for use as antidepressant until after expiration of 452 patent. Applications judge properly held that appellants' respective allegations of invalidity regard- ing 452 patent were not justi- fi ed and that they had failed to show that their generic version of escitalopram would not in- fringe this patent. 452 patent was not selection patent but rather ordinary patent for origi- nal compound and its validity was to be assessed on that basis. 452 was not anticipated by prior art, in particular by two United States patents. Escitalopram was not obvious. Allegation that 452 patent lacked utility was rejected. Finally, 452 pat- ent was not ambiguous; inven- tion was correctly described. Lundbeck Canada Inc. v. Can- ada (Minister of Health) (Nov. 25, 2010, F.C.A., Noel, Pelle- tier and Trudel JJ.A., File No. A-129-09; A-135-09; A-139- 09) Decision at 175 A.C.W.S. (3d) 848, 73 C.P.R. (4th) 69 was affi rmed. 196 A.C.W.S. (3d) 219 (52 pp.). Privacy Legislation COSTS Judge erred in holding that application for judicial review was premature Appellant had fi led application for judicial review of commis- sioner's decision refusing his access request within 45-day deadline for commencing such applications but prior to com- mitment date. On commit- ment date, Industry Canada provided appellant with re- quested records. Appellant then brought motion seeking order dismissing application for judi- cial review because it had been rendered moot. Appellant also sought costs. Application judge committed error in principle in holding that appellant's ap- plication for judicial review was premature when it was com- menced. But for that error of principle, judge would have considered appellant's claim for costs on basis that his applica- tion had been properly com- menced, but had been rendered moot. Judge would have also have considered that appellant was provided with requested records after application for ju- dicial review was commenced, some 20 months after access request had been fi led. In spe- cifi c circumstances now before court, considering above fac- tors, court should have ordered that appellant was entitled to have his costs in Federal Court. Appellant was awarded party- and-party costs. Dagg v. Canada (Minister of In- dustry) (Nov. 22, 2010, F.C.A., Dawson, Trudel and Mainville JJ.A., File No. A-500-09) Deci- sion at 183 A.C.W.S. (3d) 566 was reversed. 196 A.C.W.S. (3d) 265 (13 pp.). ONTARIO CIVIL CASES Arbitration STAY OF PROCEEDINGS Discretion in court concerning whether to grant stay Motion by defendant for stay of claim for damages for failure to construct new home in good and workmanlike manner pur- suant to s. 7 of Arbitration Act, 1991 (Ont.) ("AA"), on basis that arbitration provision deemed to be included in pur- chase of agreement of purchase and sale under s. 17(4) of On- tario New Home Warranties Plan Act. Order adjourning motion and order that affi davit of representative of defendant with knowledge be sworn and fi led within 30 days describ- ing eff orts to deal with plaintiff since house sold to her includ- ing copies of all relevant mate- rials, a Scott Schedule setting out the complaints, indentify- ing which warranty period is applicable to each one and de- scribing defendant's response. Discretion in court concerning whether to grant stay. Material fi led woefully inadequate and did not allow court to properly evaluate exercise of discretion CASELAW under s. 7(2) of AA. Not able to determine whether possi- bility of remedy for plaintiff through arbitration is real or chimera. Vujcuf v. Arista Homes (Dec. 21, 2010, Ont. S.C.J., Lauwers J., File No. CV-09-097198) 196 A.C.W.S. (3d) 17 (3 pp.). Civil Procedure TRIAL Plaintiff not entitled to cross- examine defendant after plaintiff closing case and defendant electing to call no evidence Motion by plaintiff for or- der under rule 53.07 of Rules of Civil Procedure (Ont.), to cross-examine defendant A.P. after plaintiff had expressly closed its case and A.P. had elected to call no evidence. Claim against A.P. was that he as director and offi cer of corpo- rate defendant was responsible for proper disposition of funds received by corporate defen- dant on account of its fees for services as load broker pursuant to s. 15 of Truck Transporta- tion Act (Ont.). Plaintiff did not comply with second branch of rule 53.07(a) to serve notice of intention to call defendant as witness. Motion dismissed. Argument that prejudice would accrue to plaintiff and not A.P. rejected. Litigants make tacti- cal decisions in presenting their cases and live with consequenc- es in ordinary course. Distinct possibility of prejudice to A.P. if cross-examined. A.P. entitled to conduct defence on basis of response to plaintiff 's tactical decision to close plaintiff 's case. Rule 52.10 permits trial to pro- ceed subject to proof of a fact that has not been proved by ac- cident, mistake or other cause. Assumption that A.P.'s presence at trial indicated he would tes- tify on own behalf not within scope of words accident, mistake or other cause. Even if assump- tion could be so characterized, this did not alter fact that de- fendant did nothing to mislead or otherwise contribute to error inherent in that assumption. To permit re-opening of trial to en- able cross-examination would unreasonably extend operating parameters of rule 52.10 and thereby render nugatory con- sequences of plaintiff closing its case. Travelers Transportation Services Inc. v. 1415557 Ontario Inc. (Dec. 21, 2010, Ont. S.C.J., MacKenzie J., File No. CV-05- 002514-00) 196 A.C.W.S. (3d) 66 (12 pp.). Limitations TORT Section 18 of Limitations Act, 2002 (Ont.) replaced s. 8 of Negligence Act (Ont.) with new limitation period and commencement date Storm blew down walls of new school gymnasium being con- structed by various defendants for plaintiff . Defendant Truax provided ongoing engineer- ing services during reconstruc- tion. Professional Engineers Act (Ont.) ("PEA"), provided for 12-month limitation pe- www.lawtimesnews.com riod in relation to any action for damages arising from pro- vision of engineering services. Services concluded on February 19, 2003, so limitation period expired on February 19, 2004. Limitations Act, 2002 (Ont.) ("LA"), came into force on Jan- uary 1, 2004, repealing relevant PEA provision. LA provides that if claim discovered before January 1, 2004, and if former limitation period did not expire before that date, then former limitation period still applies. Plaintiff 's action not com- menced until June 23, 2008. Defendants' various cross- claims for contribution and indemnity brought within two- year limitation period provided for such claims in LA. Prior to January 1, 2004, s. 8 of Neg- ligence Act (Ont.), provided that defendant originally sued by plaintiff could make claim against concurrent tortfeasor for contribution and indemnity, despite passage of relevant limi- tation period, as long as contri- bution claim brought within one year of original judgment. Truax argued that s. 18 of LA does not have same eff ect. Mo- tion judge held that s. 18 of LA has same legal eff ect but pro- vides for two-year limitation. Appeal dismissed. Section 18 of LA replaced s. 8 with new limi- tation period and commence- ment date. It provides "For the purposes of subsection 5(2) and s. 15, in the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the fi rst alleged wrongdoer PAGE 19 was served with the claim in respect of which contribution and indemnity is sought shall be deemed to be the day the act or omission on which that alleged wrongdoer's claim is based took place". Although s. 18 did not re-enact component allowing claim for contribution to be brought after expiry of limitation period that applied to action that could have been brought by plaintiff directly, as matter of statutory interpreta- tion, s. 18 intended to and does have same eff ect as s. 8. Section 5(2) sets date when claim pre- sumed to be discovered and s. 15 provides ultimate limitation period. Section 4 provides basic two-year limitation period for all claims unless otherwise pro- vided. Claim for contribution and indemnity now has two- year limitation period presumed to run from date when person who seeks contribution and in- demnity served with plaintiff 's claim that gives rise to its claim over. Eff ect is that period for bringing claim for contribution and indemnity now coincides more closely with basic limita- tion for bringing all actions and procedurally it is contemplated that all claims arising out of in- cident that caused injury will be tried and disposed of together. Waterloo Region District School Board v. CRD Construction Ltd. (Dec. 9, 2010, Ont. C.A., Feld- man, Simmons, Cronk, La- Forme and Epstein JJ.A., File No. C51366) Decision at 313 D.L.R. (4th) 82, 182 A.C.W.S. (3d) 450 was affi rmed. 196 A.C.W.S. (3d) 257 (14 pp.). When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. 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