Law Times

PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Aboriginal Peoples BANDS Order quashing decision to exclude respondent from band list upheld on appeal Application judge ordered that decision to exclude respondent from band list be quashed and that issue of respondent's mem- bership in band be remitted to chief and council of band to be dealt with in accordance with Band's Membership Code and Indian Act (Can.). There was ample evidence to support judge's conclusion that deci- sion was taken to exclude re- spondents from band list and deprive them of their voting rights at 2004 election and right to run for that election. Very fact that dispute contin- ued today confirmed that deci- sion was taken and that deci- sion was final. Respondents had exhausted all adequate internal remedies. As judge found, remedies advanced by appellant were either unavail- able or inadequate. Okemow-Clark v. Lucky Man Cree Nation (Feb. 16, 2010, F.C.A., Letourneau, Nadon and Dawson JJ.A., File No. A-414-08) Decision at 169 A.C.W.S. (3d) 1 was affirmed. 185 A.C.W.S. (3d) 262 (7 pp.). Taxation INCOME TAX Union officials held "office" within meaning of s. 248(1) of Income Tax Act (Can.), so allowances were taxable Appeal by Minister of National Revenue from judgment allow- ing appeals by two unions and fourteen union officials from tax assessments. Union officials were paid by employers when taking time off for union activ- ities but employers were reim- bursed by unions. Unions also paid union officials allowances for meals, travel and child care expenses incurred in course of union activities. Minister con- sidered allowances to be taxable under ss. 5 and 6 of Income Tax Act (Can.). Minister also considered allowances to be in- surable earnings within mean- ing of Employment Insurance Regulations (Can.). Tax Court of Canada Judge found allow- ances were neither taxable nor insurable since union officials did not hold office or employ- ment connected to allowances. Tax Court of Canada Judge considered union officials to be serving as volunteers. Appeal allowed. Union officials held "office" within meaning of s. 248(1) of Act so allowances were taxable under ss. 5 and 6 of Act. Union officials were all elected to their positions. Union officials were entitled to "fixed or ascertainable" remu- neration. Union officials knew exactly what monetary condi- tions were associated with their union activities when they ap- plied for their positions. Lack of entitlement under contrac- tual relationship with union or under union constitution or by-law was immaterial. Sole is- sue was whether union officials were paid for their union ac- tivities. Union officials received their full salaries and all fringe benefits set out in their col- lective agreements despite fact that they performed no servic- es for employers. Cost of this remuneration was ultimately borne by unions. Tax Court of Canada Judge's finding that union officials were serving as volunteers was unfounded. M.N.R. v. Conseil Central des Syndicats Nationaux du Saguenay/Lac St-Jean (CSN) (Dec. 17, 2009, F.C.A., Blais C.J., Letourneau and Noel JJ.A., File No. A-484-08; A-485-08; A-486-08; A-487- 08; A-488-08; A-489-08; A-490-08; A-491-08) 185 A.C.W.S. (3d) 526 (28 pp.). FEDERAL COURT Constitutional Law COURTS Mandatory retirement age of 75 years in s. 99(2) of Constitution Act, 1867 did not apply to deputy judges of Federal Court Application for declaration that person over 75 years of age cannot act as deputy judge of Federal Court. Applicant com- menced application for judicial review in immigration matter. Hearing was scheduled before deputy judge who was over 75 years of age. Deputy judge had been judge of Superior Court of Quebec until he had to re- tire at 75 years of age. Deputy judge was one of several who were over 75 years of age and who had been appointed at re- quest of Chief Justice of Feder- al Court. Applicant contended mandatory retirement age of 75 years in s. 99(2) of Con- stitution Act, 1867, applied to deputy judges of Federal April 19, 2010 • lAw Times COURT DECISIONS ainmaker_LT_June2_08.indd 1 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: 5/28/08 10:43:29 AM 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. Court. Application dismissed. Mandatory retirement age of 75 years in s. 99(2) of Act did not apply to deputy judges of Federal Court. Section 99(2) of Act only referred to "a judge of a Superior Court". Federal Court was not "Superior Court" within meaning of s. 99(2) of Act. Federal Court was consti- tuted by Parliament in exercise of its jurisdiction pursuant to s. 101 of Act. Use of words "Not- withstanding anything in this Act" in s. 101 of Act was indi- cation that s. 99(2) of Act was not to apply to court consti- tuted by Parliament pursuant to s. 101 of Act. Presumption against legislative redundancy also supported view that s. 101 courts were not superior courts within meaning of s. 99 of Act. Age requirements for Federal Court and its predecessor were enacted by Parliament in sepa- rate legislation. If s. 99(2) of Act applied, such enactments would not have been necessary. Federal Court was superior court of record but it was not type of superior court envi- sioned by s. 99(2) of Act. Ap- plicant was awarded $6,000 in costs based on public interest nature of issue. Felipa v. Canada (Minister of Citizenship and Immigration) (Jan. 26, 2010, F.C., Lutfy C.J., File No. IMM-1086-09) 185 A.C.W.S. (3d) 334 (59 pp.). Intellectual Property Industrial And PATENTS Competitor's machine did not infringe patent Action by patentee for dam- ages for patent infringement. Counterclaim by competitor for declaration that patent was invalid. Patentee held patent for mobile machine that dis- integrated bales of hay and distributed hay on ground. In- vention claimed in patent had six essential elements includ- ing container to receive bales, manipulator rollers to position and rotate bales, disintegrator to remove hay from bales, and discharge slot on right side. Significant feature of machine was discharge of hay on right side so that tractor driver could conveniently monitor dis- charge while operating tractor controls. Competitor manu- factured its own version of machine that also discharged hay on right side. Competi- tor's manipulator consisted of conveyer belt mechanism rather than rollers. Action dis- missed; counterclaim allowed. www.lawtimesnews.com Competitor's machine did not infringe patent. Person skilled in art would have had farm equipment design and function expertise as well as knowledge of practical day-by-day aspects of design implementation and equipment operation. Com- petitor's manipulator did not infringe patent since it was dif- ferent type of manipulator and not variant of patentee's ma- nipulator. Competitor's right- side discharge did not infringe patent since its discharge slot within meaning of patent was underneath machine. Manner in which competitor's machine discharged hay was different from what was described in patent. Patent was invalid on basis of obviousness. Novel concept claimed by patentee was recognition of advantage in most cases of right-side dis- charge in bale processor using gearbox. At time of patent claim date, there was nothing particularly inventive in de- signing bale processor that had discharge on right side rather than left side. Indeed, another company had manufactured bale processor with right-side discharge some 14 years prior to patent claim date. Bridgeview Manufacturing Inc. v. 931409 Alberta Ltd. (Jan. 20, 2009, F.C., Campbell J., File No. T-1554-05) 185 A.C.W.S. (3d) 450 (60 pp.). ONTARIO CIVIL CASES Civil Procedure DISCOVERY It was fair for cross-examinations to be in Newmarket Applicant brought application for orders in nature of prohi- bition and certiorari quashing information and summons re- lating to alleged offences un- der Municipal Elections Act (Ont.). Applicant brought mo- tion to cross-examine individu- al who swore informations and individual who swore affida- vits in applications. Applicant sought order for examinations to take place in Newmarket. Respondent was prepared to allowed individual who swore information to be cross-exam- ined as long as it was in Kings- ton. It was fair for cross-exam- inations to be in Newmarket. Parties were situated closed to Newmarket where proceedings originated and would be decid- ed. Cross-examination of indi- vidual who swore affidavits on issue of knowledge relevant to limitation period was relevant and material and was properly subject of cross-examination. Questions addressed to indi- vidual on subjects other than limitations periods were irrele- vant and immaterial to matters raised in application. Jackson v. Vaughan (City) (Feb. 8, 2010, Ont. S.C.J., Lauwers J., File No. CV-08-091028) 185 A.C.W.S. (3d) 313 (6 pp.). Constitutional Law CHARTER OF RIGHTS Section 81 of Municipal Elections Act, 1996 (Ont.) not unconstitutional Appellant, candidate in mu- nicipal election who was elected mayor of V., was required to file financial statements relat- ing to her campaign finances. Compliance audit of her elec- tion campaign finances revealed apparent contraventions of Municipal Elections Act, 1996 (Ont.). After receiving compli- ance audit report, council of city of V. passed by-law autho- rizing commencement of legal proceedings against appellant. Application judge correctly dis- missed appellant's to have by-law quashed and relevant legislation application provisions struck down. Section 81 of Act is not impermissibly vague. There was sufficient basis within legislation for legal debate and reasoned legal analysis, leading to coherent judicial interpreta- tion of s. 81. Compliance audit and prosecution processes un- der s. 81 of Act do not engage s. 7 of Canadian Charter of Rights and Freedoms. Further, by participating as candidate in municipal election, appellant voluntarily subjected herself to provisions of Act. Those legisla- tive provisions required her to maintain and file detailed in- formation during compliance audit. In such circumstances, she had no reasonable expecta- tion of confidentiality concern- ing any of matters required to be reported and cannot assert right against self-incrimination to avoid providing information to compliance auditor. Further, information being considered by auditors was not collected at time when relationship be- tween appellant and V. was ad- versarial in nature. Information was statutorily compelled and provided in response to defined regulatory requirement. That requirement was not coercive in nature as it arose only after ap- pellant made conscious choice to participate in election. In such circumstances, it does not appear that principle against self-incrimination is engaged.

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