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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Bankruptcy And Insolvency TRUSTEE Delegate misunderstood burden on respondents with respect to establishing due diligence defence Th is was appeal from judge's de- cision fi nding that respondents had established defence of due diligence. Respondents carried on activities as trustees in bank- ruptcy under licences issued by Superintendent of Bankruptcy. Appellant was senior analyst with offi ce of Superintendent of Bankruptcy. Appellant was mandated to conduct investiga- tion of respondents' professional conduct in administration of bankruptcy estates. Investiga- tion culminated in report that identifi ed over forty breaches of professional conduct. Super- intendent appointed delegate to conduct hearing. Delegate found that respondents failed to fully comply with relevant statu- tory and regulatory provisions but that defence of due diligence was made out. Appeal allowed. Delegate's decision gave rise to extricable question of law that was to be reviewed on standard of correctness. Delegate misun- derstood burden on respondents with respect to establishing due diligence defence. Delegate's determination that respondents successfully established defence of due diligence was based on ir- relevant considerations. Delegate failed to hold respondents to correct burden of proof, which was to demonstrate on balance of probabilities that they took all reasonable steps to avoid com- mitting infractions. Th ere was no evidence that could support fi nding that all reasonable care was exercised to prevent specifi c infractions from occurring. Canada (Offi ce of the Superin- tendent of Bankruptcy, Senior Analyst-Professional Conduct) v. MacLeod (Jan. 13, 2011, F.C.A., Blais, Noel and Nadon JJ.A., File No. A-66-10) Decision at 184 A.C.W.S. (3d) 873 was re- versed. Order No. 011/026/169 (27 pp.). Charter Of Rights MOBILITY RIGHTS Mobility rights did not include right to serve foreign prison sentence in Canada Applicant sentenced to 90 months' imprisonment in Unit- ed States for traffi cking large amounts of cocaine. Application for transfer of his sentence to Canada approved by American authorities but refused by Min- ister of Public Safety and Emer- gency Preparedness. Provisions of International Transfer of Of- fenders Act permitting Minister to refuse application for transfer did not infringe applicant's mo- bility rights. Canada had not refused to admit applicant to Canada but had refused to ad- minister foreign prison sentence. Mobility rights did not include right to serve foreign prison sen- tence in Canada. Application for judicial review of Minister's deci- sion dismissed. Divito v. Canada (Minister of Public Safety and Emergency Pre- paredness) (Feb. 3, 2011, F.C.A., Nadon, Trudel and Mainville JJ.A., File No. A-425-09) Order No. 011/046/092 (38 pp.). Taxation INCOME TAX Information in electronic form June 13, 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. stored on servers outside Canada was, in law, capable of being located in Canada for purpose of s. 231.6 of Income Tax Act Th is was appeal from judge's de- cision authorizing respondent to impose requirement on appel- lants to produce certain infor- mation. eBay US operated on- line marketplace off ering goods and services for sale on one of eBay's websites for purchase by highest bidder. Respondent ap- plied ex parte for order requiring appellants to produce informa- tion identifying PowerSellers in Canada who sold more than certain volume of items on eBay. Respondent wanted information to determine whether PowerSell- ers complied with obligations under Income Tax Act (Can.). Judge found that information sought was not "foreign-based" information even though it was stored on servers outside Cana- da. Judge granted order fi nding it was open to respondent to seek production by requirement imposed on appellants pursuant to s. 231.2. Appeal dismissed. Information in electronic form stored on servers outside Canada was in law capable of being lo- cated in Canada for purpose of s. 231.6 of Act. Judge did not err in fi nding that information in question was located in Canada within meaning of s. 231.6. Un- der s. 231.2, judge only had to be satisfi ed that information in question was required to verify compliance with Act by one or more of unnamed persons in group or that information was required for tax audit conducted in good faith. Judge concluded that respondent needed infor- mation to conduct good faith audit of PowerSellers resident in Canada to ensure that they were complying with obligations un- der Canada's tax laws and there was ample evidence to support conclusion. eBay Canada Ltd. v. M.N.R. (Nov. 7, 2008, F.C.A., Linden, Evans and Trudel JJ.A., File No. A-105-08) Decision at 285 D.L.R. (4th) 488, 160 A.C.W.S. (3d) 1081 with additional rea- sons to 289 D.L.R. (4th) 765, 164 A.C.W.S. (3d) 897 was af- fi rmed. Order No. 008/329/014 (30 pp.). FEDERAL COURT Admiralty PERSONAL INJURIES AND DEATH Board should have focused on whether or not applicant's injury arose from his being in military service Application for judicial review of decision by board affi rming review panel's decision affi rm- ing Department of Veterans Af- fairs decision to deny applicant pension entitlement. Applicant was undergoing offi cer training aboard destroyer escort. Ap- plicant had consumed alcohol after having completed training for day, and slipped in shower. Applicant sustained lower back injuries. Application granted. Board's decision was quashed. Board focused on whether or not applicant was performing spe- cifi c military function or duty at specifi c moment of injury rather than focusing on whether or not applicant's injury arose from his being in military service. Bradley v. Canada (Attorney Gen- eral) (Mar. 15, 2011, F.C., Phel- an J., File No. T-617-09) Order No. 011/082/038 (14 pp.). Intellectual Property Industrial And THE ONTARIO MUNICIPAL SERVICE DIRECTORY 2011 A Comprehensive Guide for reAl estAte professionAls, 2011 All the municipal services information you need for real estate searches under one cover. With introduction and historical linkages by michael l. Young, ll.B. this handy resource helps you process your real estate transactions more efficiently, saving you time and energy. published annually, the ontario municipal service directory: A Comprehensive Guide for real estate professionals, 2011 gives you up-to-date and easily accessible municipal contact information. more thAn A direCtorY Perfectbound • March 2011 • One time purchase $89 L1206-694X • On subscription $84 L1206-694X-26117 • ISSN 1206-694X • Multiple copy discounts available Visit canadalawbook.ca or call 1.800.565.6967 for a 30-day no-risk evaluation prices subject to change without notice, to applicable taxes and shipping & handling. CANADA LAW BOOK® www.lawtimesnews.com OMSD 1-4 pg 5X.indd 1 6/8/11 3:44:57 PM TRADE-MARKS Trade-mark "TEACHERS" not registrable by Ontario teachers' pension plan Th is was appeal from decision of Registrar of Trade-Marks re- fusing to register trade-mark. Applicant, administrator of Ontario teachers' pension plan, applied to register trade-mark "TEACHERS'". Registrar found that mark was apt trade term describing intrinsic char- acter of administration, manage- ment and investment of pension fund for teachers that should be left available for others to use. Registrar found that mark was not registrable as being contrary to s. 12(1)(b) of Trade-marks Act (Can.). Appeal dismissed. Use of phrase "wares or services" in s. 12(1)(b) required consideration of something more than just ser- vices. Pension fund came within broader subject matter encom- passed by "wares or services". First impression created by pro- posed trade-mark, considering context of pension plan, pension fund itself and services provided by applicant, was that proposed trade-mark described prominent characteristic of pension fund for teachers and was caught by s. 12(1)(b) of Act as being clearly descriptive even though it did not describe administration, management or investment of pension fund. Providing appli- cant with monopoly on use of word would prevent other pen- sion or fi nancial services targeted to or belonging to teachers with- in Ontario or in other provinces or territories from using term. Trade-mark was not registrable pursuant to s. 12(1)(b) of Act. Ontario Teachers' Pension Plan Board v. Canada (Attorney Gen- eral) (Jan. 18, 2011, F.C., Man- damin J., File No. T-1091-09) Order No. 011/027/037 (24 pp.).

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