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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Aboriginal Peoples CROWN RELATIONSHIP No provision prevents National Energy Board from issuing s. 52 certificate without first undertaking Haida analysis National Energy Board ("NEB") held hearings with respect to applications for approvals in respect of three proposed pipe- line projects. Dakota Band Standing Buffalo First Nation ("DBSBFN") participated as intervener in hearings. It gave evidence it negotiated with Canada with respect to asserted claims in respect of unextin- guished aboriginal title to lands and it intervened to advance its interests. Two other First Nations participated in another hear- ing through Battleford Agency Tribal Chiefs Inc. ("BATC"). In that hearing, applicant intro- duced without prejudice letter in which Crown took position Dakota First Nations, includ- ing DBSBFN, "do not have Aboriginal rights in Canada". BATC expressed concerns about potentially adverse effects project would have on sacred sites and plant gathering for traditional and medicinal purposes and possibility that First Nations' claims to land under Treaty Land Entitlement Process might be satisfied by lands affected by project. NEB granted approv- als sought in relation to each of three projects. NEB denied DBSBFN motion raising issue of Crown's requirement to par- ticipate in hearing process. NEB concluded it had jurisdiction to deal with applications before it without having to adjudicate existence of aboriginal claims and not obligated to require Crown to participate in adjudication. Appellant First Nations sought to set aside three NEB deci- sions, asserting NEB required to undertake full analysis in accordance with Haida Nation v. British Columbia (Minister of Forests) (2004), 245 D.L.R. (4th) 33, 135 A.C.W.S. (3d) 2 (S.C.C.), before it could make decisions at issue. Appeals dis- missed. NEB did not determine existence of Haida duty and decisions could not be taken as encompassing any conclusions with respect to whether consul- tations undertaken by propo- nents of projects capable of dis- charging any Haida consultation duty Crown may have. In exer- cising decision-making function NEB must act within dictates of Constitution Act, 1982 (Can.) ("CA"), including s. 35(1) which requires recognition of existing aboriginal and treaty rights. NEB dealt with pipeline approval applications pursuant to s. 52 of National Energy Board Act (Can.) ("NEB Act"). Process requires applicant for each project to have due regard for existing aboriginal rights. In ensuring that applicant respects aboriginal rights, NEB exercis- ing decision-making function in accordance with s. 35(1) of CA. No provision of NEB Act or any other legislation that pre- vents NEB from issuing s. 52 certificate without first under- taking Haida analysis or that empowers it to order Crown to undertake Haida consultations. Nor does NEB have jurisdic- tion to undertake own Haida analysis. Assertion that s. 52 of NEB Act invalid because it does not include specific provision stating that NEB must adhere to protection afforded to exist- ing aboriginal and treaty rights rejected. NEB required to con- duct decision-making process in manner that respects provisions of s. 35(1) of CA. Failure to spe- cifically refer to requirement in s. 52 or elsewhere insufficient to invalidate that provision. Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc. (Oct. 23, 2009, F.C.A., Noel, Layden-Stevenson and Ryer JJ.A., File No. A-537-08; A-541-08; A-542-08; A-475- 08) Order No. 009/335/080 (32 pp.). FEDERAL COURT Air Law AIRPORTS Decision of Canadian Air Transport Security Authority to decertify employee was reasonable Application by employee for judicial review of decision dis- missing appeal from decerti- fication as pre-board screener. Employee worked for security company as certified pre-board screener stationed at airport. Employee underwent testing to be re-certified by Canadian Air Transport Security Authority ("CATSA"). Examiner noticed three words written on back of employee's hand. Employee was decertified for cheating and her employment was ter- minated. Employee unsuc- FEBRUARY 1, 2010 / LAW TIMES COURT DECISIONS ainmaker_LT_June2_08.indd 1 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 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. cessfully appealed to CATSA's Certification Decision Review panel. Application dismissed. Standard of review was reason- ableness in light of nature of CATSA's role and expertise and factual nature of issue. Decision was reasonable. Employee admit- ted having written something on her hand while studying. Credibility determinations were entitled to deference. Reasons for decision could have been more explicit with respect to credibility findings but decision was nonetheless reasonable. Bhatthal v. Canada (Attorney General) (Nov. 18, 2009, F.C., Shore J., File No. T-42- 09) Order No. 009/334/221 (19 pp.). Intellectual Property Industrial And PATENTS Patent covering single medicinal ingredient was different from patent covering specified formulation Application by pharmaceutical company for judicial review of decision of Minister of Health finding patent could not be listed on patent vided that words in singular included plural. In order to be eligible for listing in connection with birth control pill, patent had to claim formulation with both medicinal ingredients. No inconsistency arose from fact that patent covering single medicinal ingredient could be listed pursu- ant to s. 4(2)(a) of regulations in connection with formulation containing two medicinal ingre- dients. Patent covering single medicinal ingredient was differ- ent from patent covering speci- fied formulation. Bayer Inc. v. Canada (Minister of Health) (Nov. 17, 2009, F.C., Russell J., File No. T-582- 09) Order No. 009/334/216 (30 pp.). ONTARIO CIVIL CASES Equity ESTOPPEL Preconditions for application of issue estoppel not present registry in connection with related drug. Pharmaceutical company's pat- ent covered ethinyl estradiol combined with another com- pound that acted as stabilizer. Pharmaceutical company want- ed to register patent in con- nection with birth control pill for which notice of compliance had been issued. Birth control pill contained combination of ethinyl estradiol and stabiliz- ing compound covered by pat- ent plus additional ingredient drospirenone. Minister found patent to be ineligible for listing in connection with birth control pill since patent did not cover all medicinal ingredients in birth control pill. Application dis- missed. Minister's decision was correct. Patent claimed formula- tion since it covered combination of medicinal and non-medicinal ingredients. Consequently, phar- maceutical company had to sat- isfy requirements of s. 4(2)(b) of Patented Medicines (Notice of Compliance) Regulations (Can.). Formulation covered by patent was not same formula- tion covered by notice of com- pliance since latter formulation contained additional medicinal ingredient. Hence, formulation covered by patent was not same one that had been approved as medicine. Fact that s. 4(2)(b) referred only to singular term "medicinal ingredient" was not determinative. Section 33(2) of Interpretation Act (Can.), pro- www.lawtimesnews.com At time of incident defendant was on duty as police officer. Defendant and plaintiff saw altercation between others and moved to intervene. Defendant punched plaintiff in face. Plaintiff hit head on sidewalk sustaining traumatic brain injury. Plaintiff filed complaint against defendant under Police Services Act (Ont.), and hearing officer determined defendant was not guilty of allegations. Defendant brought motion for summary judgment. Defendant sought to dismiss action on grounds of issue estoppel. Defendant's motion was dismissed. Determination defendant was justified in using force by hearing officer did not determine whether force was used negligently. Three precon- ditions for application of issue estoppel were not present. Hume v. Ghadban (Nov. 25, 2009, Ont. S.C.J., McNamara J., File No. 07-CV-38142) Order No. 009/341/030 (6 pp.). Family Law COSTS Costs on substantial indemnity basis appropriate where wife behaved unreasonably Wife brought application seek- ing guardianship of husband on basis husband suffered from form of dementia. Two medi- cal specialists conducted capac- ity assessments on husband. Assessments indicated husband did not suffer from dementia. Wife attempted to impose con- ditions on husband's ongoing medical care for abandonment of application. Husband reject- ed conditions. Wife abandoned application. Husband sought costs of application brought by wife. Proceeding was brought by wife in attempt to remove husband from place in family and in family business. Wife behaved unreasonably. Costs on substantial indemnity basis were appropriate. Husband was awarded costs of $43,396 plus GST payable forthwith. Datta v. Datta (Dec. 4, 2009, Ont. S.C.J., MacKenzie J., File No. CV-09-0563-00) Order No. 009/341/035 (14 pp.). DOMESTIC CONTRACTS Purported separation agreement not valid agreement Parties were married 20 years and had two children. Parties owned business. Business moved premises. Wife changed name of business. Wife closed down two business unequal division of accounts. Wife had exclusive use of property. Wife sought ongoing and ret- roactive child support. Wife claimed property on basis husband reck- lessly incurred debt and depleted net family property by buying vending machines. Wife claimed parties entered separation agree- ment. Husband denied signing agreement. Purported separation agreement was not valid agree- ment. Parties continued to reside together after date of agreement. There was no improvident deple- tion with respect to vending machines. No adjustment was made to new family property with respect to business because there was no objective evidence with respect to business. No adjustments were to be made with respect to mortgage and other expenses and there was no order with regard to occupation rent. Order went for partition and sale of business property which did not include assets or business of company. Husband was to pay retroactive child sup- port of $6,750 out of proceeds of sale. Wife was to reimburse husband for $10,000. There was no further equalization of prop- erty. Child support was fixed at $300 per month based on hus- band's income of $33,000. Wodzynski v. Wodzynski (Nov. 27, 2009, Ont. S.C.J., Rowsell J., File No. 1735/04) Order No. 009/337/011 (9 pp.). MARRIAGE Immigration fraud in itself not basis for annulling marriage Determination of question of law relating to effect of immi-

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