The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50220
LAw times • August 8, 2011 408749) 201 A.C.W.S. (3d) 804 (16 pp.). Professions GENERAL Suspension was not required to protect students from likely harm Application by teacher for ju- dicial review of interim order of Executive Committee sus- pending teacher's Certifi cate of Qualifi cation. Teacher was grade one/two teacher. Teacher was arrested and charged with possession of child pornogra- phy. Teacher was released on bail with conditions that sig- nifi cantly restricted his ability to work as teacher by prohibit- ing him from attending at any school or holding position of trust for child of less than 14 years. Application granted. Or- der suspending Certifi cate was set aside. Decision of Executive Committee did not fall within range of reasonable, acceptable outcomes. Suspension was not required to protect students from likely harm. Existing con- trols on teacher's ability to teach already removed likelihood of exposure of any student. Aris v. Ontario College of Teachers (Mar. 18, 2011, Ont. S.C.J. (Div. Ct.), Swinton, Wilton-Seigel and Lederer JJ., File No. 583/10) 201 A.C.W.S. (3d) 833 (10 pp.). Intellectual Property SUPREME COURT OF CANADA Industrial and TRADE-MARKS Incorrect in law to limit consideration of resemblance to post-application use of trade-mark to find reduced likelihood of confusion Both parties in retirement resi- dence industry. Since 2001, Masterpiece used unregistered marks containing MASTER- PIECE and began using MAS- TERPIECE LIVING in De- cember 2005 or February 2006. Alavida applied to register MASTERPIECE LIVING on December 1, 2005 and began using trade-mark in January 2006. Trade-mark registered in March 2007. Masterpiece applied to register MASTER- PIECE and MASTERPIECE LIVING in January and June 2006. Canadian Intellectual Property Offi ce objected on basis of Alavida's previous ap- plication. Application judge dismissed Masterpiece's ap- plication to expunge Alavida's registration and Masterpiece's appeal dismissed. Appeal to Supreme Court of Canada al- lowed. Canadian trade-marks regime national in scope. Geo- graphical separation irrelevant in test for likelihood of confu- sion. Trial judge erred when conducting confusion analysis. Instead of undertaking separate resemblance analysis compar- ing each of Masterpiece's marks and trade-name with Alavida's mark, he undertook single composite analysis. Although not error to conclude test for resemblance with consideration of resemblance between marks, consideration of resemblance is where most confusion analyses should start. Incorrect in law to limit consideration to post- application use of trade-mark to fi nd reduced likelihood of confusion. Since Alavida's pro- posed trade-mark is only words "Masterpiece Living", compari- son must be assessed on basis of words alone. Alavida's "Mas- terpiece Living" closest to Mas- terpiece's "Masterpiece the Art of Living". Striking or unique aspect of each is word "Master- piece". Idea evoked by each also same: high quality retirement lifestyle. Th ere is strong resem- blance. When considering "na- ture of the trade", not relevant, as trial judge found, that careful research and deliberation may dispel trade-mark confusion. Casual consumer would likely be confused. Little to dispel consumer from thinking that source of marks same and Ala- vida's registration would entitle it to use trade-mark in same market. Masterpiece's applica- tion for registration rejected on basis that Alavida's previous ap- plication confusingly similar. Registrar's decision supported fi nding of likelihood of confu- sion. Court also provided guid- ance on use of expert evidence in trade-mark cases. Masterpiece Inc. v. Alavida Lifestyles Inc. (May 26, 2011, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Fish, Charron, Roth- stein and Cromwell JJ., File No. 33459) Decision at 312 D.L.R. (4th) 532, 78 C.P.R. (4th) 243, 184 A.C.W.S. (3d) 492 was re- versed. 201 A.C.W.S. (3d) 794 (62 pp.). FEDERAL COURT OF APPEAL Civil Procedure DISCOVERY No basis for appellate intervention in Tax Court Judge's refusal to order answers to disputed questions Tax Court Judge dismissed appellant's motion to compel answers to certain questions posed in his examination for discovery of Crown witness on basis that answers would not meet test of relevance. Root of appeal was appellant's asser- tion that Tax Court Judge mis- construed pleadings when he found that Federal Child Sup- port Guidelines (Can.), were not facts in issue. Tax Court Judge did not fi nd that Guide- lines were not "facts in issue". Rather, he said that "Guide- lines themselves are a fact", but alleged defi ciencies in Guide- lines were argument. No error in tax court judge's interpreta- tion of pleadings, or in his spe- cifi c fi nding that pleadings did not allege connection between scope and application of s. 18(1) (a) of Income Tax Act (Can.), and analytical foundations of Guidelines. No basis for appel- late intervention in Tax Court CASELAW Judge's refusal to order answers to disputed questions. Grenon v. Canada (May 2, 2011, F.C.A., Blais C.J., Sharlow and Stratas JJ.A., File No. A-255-10) Decision at 191 A.C.W.S. (3d) 764 was affi rmed. 201 A.C.W.S. (3d) 655 (18 pp.). Constitutional Law CHARTER OF RIGHTS Failure of Governor in Council to enact regulations does not infringe rights of appellants under ss. 7 or 15 of Charter Section 25(1) of Immigration and Refugee Protection Act (Can.), permits foreign na- tional in Canada who is inad- missible or who does not meet requirements of Act to submit "in-Canada" or "inland" appli- cation for permanent resident status with request that Minis- ter exercise discretion to grant specifi ed relief. On proper in- terpretation of s. 25(1) of Act, Minister is obliged to consider request for exemption from re- quirement in s. 307 of Immi- gration and Refugee Protection Regulations (Can.), to pay fee for processing application under s. 25(1) of Act. Failure of Gov- ernor in Council to enact regu- lations permitting waiver of fees for foreign nationals living in poverty who wish to make in- Canada application for perma- nent resident status pursuant to s. 25(1) of Act does not infringe rights of appellants under ss. 7 or 15 of Canadian Charter of Rights and Freedoms or rule of law or common law constitu- tional right of access to courts. Toussaint v. Canada (Minister of Citizenship and Immigration); Ndungu v. Canada (Minister of Citizenship and Immigration) (Apr. 29, 2011, F.C.A., Sharlow, Dawson and Layden-Stevenson JJ.A., File No. A-408-09; A-501- 09) Decisions at 180 A.C.W.S. (3d) 950 and 183 A.C.W.S. (3d) 1086 were reversed. Consolidat- ed Case. 201 A.C.W.S. (3d) 793 (30 pp.). ONTARIO CRIMINAL CASES Appeal NEW TRIAL Counsel's failure to abide by accused's instructions did not allow accused to properly challenge Crown's case Accused appealed his convictions of assault causing bodily harm and uttering a threat against his wife. Trial judge did not consider accused's evidence to be credible enough and ruled that since there was nothing to challenge the complainant's reliability he must convict. Accused had instructed his counsel to call his family members that would have called into question complainant's reli- ability but his counsel did not listen to his instructions. Ap- peal allowed, new trial ordered. Counsel's failure to abide by ac- cused's instructions did not allow accused to properly challenge Crown's case which resulted in www.lawtimesnews.com a miscarriage of justice. Verdict could have been diff erent given the judge's closed fi ndings on credibility as evidence of family members may have bolstered the character of accused. R. v. Abada (May 27, 2011, Ont. S.C.J., McNamara J., File No. RD-4364) Decision at 81 W.C.B. (2d) 85 was reversed. 94 W.C.B. (2d) 486 (10 pp.). Charter Of Rights APPLICATION Warrantless search of accused's vehicle was reasonable Application by accused for stay of proceedings or to exclude ev- idence because his rights under Canadian Charter of Rights and Freedoms were violated. Accused was charged with rob- bery, disguise with intent, using an imitation fi rearm while com- mitting robbery and possession of crime proceeds. Perpetrator, whose face was masked, point- ed gun at convenience store clerk and robbed him. Two hours after police arrived at the store accused approached them and asked if there had been a robbery. He told them that he had a backpack in his car that was used in the robbery. Ac- cused was arrested based on store surveillance video and his confession that he committed the robbery. Application dis- missed. Accused's s. 8 rights were not violated. He told po- lice about the backpack and invited them to look inside his car. Warrantless search of ac- cused's vehicle was reasonable. Accused was not arbitrarily de- PAGE 15 tained in the police car. Police had lawful authority to detain him for investigative purposes. Accused was informed of the reason for his arrest and he was properly informed of his right to counsel. Issue of violation of right to counsel was moot be- cause accused, who was mind- ful of that right did not choose to assert it until well after he chose to co-operate with police. Since accused's rights were not violated he was not entitled to stay or to exclusion of evidence. Police were also cognizant of their obligations and they acted in good faith and were cautious and respectful in manner that they dealt with accused. R. v. Bogle (May 24, 2011, Ont. S.C.J., Dunnet J., File No. CR- 10-5-0000-774) 94 W.C.B. (2d) 489 (24 pp.). Motor Vehicles CARELESS DRIVING Issue as to who was in care and control of the car was not ade- quately expressed or explained Accused appealed her convic- tion for careless driving. Ac- cused was a student driver who rear ended another vehicle when the instructor was sitting right beside her in slippery condi- tions. Appeal allowed, accused acquitted. Issue as to who was in care and control of the car was not adequately expressed or explained by the Justice of the Peace. R. v. Banga (Apr. 21, 2011, Ont. C.J., Douglas J., File No. 4098654A) 94 W.C.B. (2d) 509 (8 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. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. You can print or download PDFs of both reported and unreported decisions – no photocopying required. BestCase allows you to track research, generate reports and manage your passwords using the Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! www.canadalawbook.ca a Thomson Reuters business