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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Arrest LEGALITY Trial judge did not err in concluding that police did not have reasonable grounds for warrantless arrest Police apprehended accused thinking he was accused's look- alike brother. Brother had out- standing arrest warrant against him. Accused protested; however he had no identity on his person. Police arrested him pursuant to s. 495(1)(c) of Criminal Code without further effort to verify identity and conducted security pat-down search which exposed cocaine in his pocket. Accused was charged with possession of cocaine for purpose of traffick- ing. Trial judge ruled that arrest and subsequent search were ille- gal and acquitted accused. Court of appeal dismissed Crown's ap- peal. Appeal issue was whether trial judge substituted more oner- ous standard for requirement of reasonable grounds that police must have to make warrantless arrest. Appeal dismissed. Trial judge made no error of law. Trial judge's conclusion that reason- able grounds had not been made out in particular circumstances of case rested on appreciation of evidence before her. Trial judge's reasons provided detailed ex- planation why she found police evidence inconsistent and want- ing in circumstances surrounding arrest. R. v. Burke (Dec. 4, 2009, S.C.C., LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33031) Appeal from 86 W.C.B. (2d) 20 dismissed. 86 W.C.B. (2d) 14 (7 pp.). Intellectual Property FEDERAL COURT Industrial And PATENTS Consolidation would cause great prejudice to smaller competitor Motion by pharmaceutical companies for order that three separate proceedings be heard together with common record. Pharmaceutical companies held patent covering drug called ramipril. Pharmaceutical com- panies brought separate actions against three competitors for relief for infringement of patent. Com- petitors brought counterclaim for damages pursuant to s. 8 of Patented Medicines (Notice of Compliance) Regulations (Can.). Two actions were consolidated while third was held in abeyance. Consolidated counterclaims were stayed on consent while consoli- dated actions proceeded to judg- ment. Consolidated actions were dismissed but pharmaceutical companies commenced appeal. Another competitor commenced action against pharmaceutical companies for damages pursuant to s. 8 of Regulations. Motion granted in part. Proceedings were to be kept separate but were to be managed by same case manage- ment prothonotary and heard consecutively by single judge. While overall market for generic version of ramipril would be fo- cus of all claims, each competitor would bear burden of proving its own losses. Records would be significantly different in each proceeding. Consolidation was not required to deal with impact of one competitor's proceeding on other proceedings. Prejudice to pharmaceutical companies would not be particularly signifi- cant whereas consolidation would cause great prejudice to smaller competitor. Consolidation or joint hearing could result in pro- cedural paralysis. Confidentiality of financial information was also significant concern. Request for sharing of discovery transcripts was denied. Concerns about inconsistent findings would be eliminated by having all proceed- ings heard by same judge. Sanofi-Aventis Canada Inc. v. No- vopharm Ltd. (Dec. 17, 2009, F.C., Snider J., File No. T-1161- 07; T-1201-08; T-1357-09) 183 A.C.W.S. (3d) 819 (18 pp.). Prisons INMATES' RIGHTS There was ample factual record to support designation Inmate was sentenced to nine years' incarceration following his conviction of conspiracy to com- mit murder and conspiracy to commit aggravated assault relat- ing to shooting incident he was involved in and where innocent bystander was seriously injured. When inmate was subjected to Intake Offender Assessment Pro- cess, Security Intelligence Offi- cer completed referral sheet that identified inmate as "boss" of or- ganized crime group. Inmate had pursued all remedies available to him to dispute designation. Letter accused wished to rely on not ad- mitted into proceedings, applica- tion for judicial review dismissed. Letter that inmate wished to rely on was legal opinion to counsel of Corrections Service that was inad- vertently disclosed to him and was February 22, 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. clearly covered by solicitor/client privilege. Impugned decision did not require criminal standards of proof. There was ample factual re- cord to support designation and decision fell within range of pos- sible, acceptable outcomes which were defensible in respect of facts and law. Inmate's position that records used to make his desig- nation were not up to date failed because there was no evidence that any further information was available or that information con- sidered was somehow erroneous. Scarcella v. Canada (Attorney Gen- eral) (Dec. 11, 2009, F.C., Snider J., File No. T-802-09) 86 W.C.B. (2d) 64 (13 pp.). ONTARIO CIVIL CASES Administrative Law JUDICIAL REVIEW No exceptional circumstances warranted judicial review of interlocutory decision Application for judicial review of decision of Licence Appeal Tribunal. Tribunal had struck additional grounds and particu- lars of conduct from applicant's supplemental notice of proposal to revoke registration of respon- dent and prohibited applicant from relying on those allegations at hearing before tribunal. Ap- plicant contended that decision to strike allegations engaged is- sues of jurisdiction. Application dismissed. There was strong presumption in all proceedings before administrative tribunals that internal procedure should be followed to completion before seeking remedy of judicial review. To hold otherwise would both disrupt orderly flow of adminis- trative hearing and largely defeat and undermine purpose of estab- lishing administrative tribunals. Compelling facts are necessary to depart from this established prin- ciple to avoid fragmentation of procedures as well as increases in costs and delay. Here there were no exceptional circumstances in facts of this case that warranted judicial review of this interlocu- tory decision. Tarion Warranty Corp. v. English Lane Homes Inc. (Dec. 11, 2009, Ont. S.C.J. (Div. Ct.), Wilson, Karakatsanis and Bryant JJ., File No. 192/08) 183 A.C.W.S. (3d) 611 (3 pp.). Bankruptcy And Insolvency STAY OF PROCEEDINGS Balance of convenience favoured not granting partial lifting of stay www.lawtimesnews.com 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. Motion by debtors for decla- ration that proceedings com- menced by finance company to enforce shareholders agreement were subject to stay of proceed- ings granted under Companies' Creditors Arrangement Act (Can.). Cross-motion by finance company for order partially lifting stay to allow it to pursue enforce- ment of shareholders agreement. Debtors and finance company were co-owners of corporation. Shareholders agreement provided finance company could seek sale of entire corporation in event that debtors became insolvent. Debtors sought protection under Act and were granted stay of pro- ceedings. Finance company com- menced proceedings to enforce shareholders agreement. Debtors contended that maintaining their interest in corporation was vital to restructuring process. Motion granted; cross-motion dismissed. Finance company's proceeding was caught by stay, and balance of convenience favoured not grant- ing partial lifting of stay. Finance company was trying to exercise right or remedy affecting debt- ors, and this fell within terms of stay order. Steps taken by debtors prior to seeking protection under Act had not violated sharehold- ers agreement. Finance company was in no worse position than any other stakeholder who was precluded from relying on rights that arose upon insolvency de- fault. Lifting of stay would result in great prejudice to debtors, and finance company's proceedings would be extraordinarily disrup- tive to restructuring process. Fi- nance company's interests were only being affected to extent that it could no longer require debtors to sell their interest in corpora- tion. Any attempt by debtors to disclaim shareholders agreement would be subject to separate pro- cess under s. 32 of Act. Canwest Global Communica- tions Corp. (Re) (Dec. 15, 2009, Ont. S.C.J. (Comm. List), Pepall J., File No. CV-09-8241- OOCL) 183 A.C.W.S. (3d) 634 (19 pp.). Building Liens HOLDBACK Owner of project to pay amount into court Claims arose out of construction of Centre Complex. Guelph was owner of project. Guelph termi- nated contract with contractor. Payment certificate certified value of work done was $34,962,133. Subcontractors brought mo- tion to fix Guelph's holdback obligation and for order Guelph pay money into court. Mini- mum holdback obligation was $3,272,714. Guelph was to pay amount into court. Payment cer- tificate did not determine value of services and materials supplied. Value of services and materials on date of termination was de- terminative. Payment certificate from independent payment certi- fier was evidence of total value of work. There was genuine issue for trial with respect to deficiencies. There was no triable issue that value of services and materials was less than certified value less costs to rectify deficiencies. There was no unfairness in Guelph be- ing required to pay amount into court. Urbacon Building Groups Corp. v. Guelph (City) (Dec. 23, 2009, Ont. S.C.J., Corbett J., File No. 866/08) 183 A.C.W.S. (3d) 643 (17 pp.). Conflict Of Laws JURISDICTION Ontario was convenient forum for litigation Plaintiff was Ontario company. Defendant was Delaware corpo- ration. Parties entered contract in Ontario. Defendant supplied ad- hesive product to plaintiff. Plain- tiff relied on defendant's advice. Plaintiff's customers complained about product. Plaintiff had to is- sue credits to customers and pay costs. Plaintiff sustained dam- ages in Ontario. Plaintiff brought claim for breach of contract and breach of warranty. Defendant brought motion to dismiss or permanently stay action on basis court had no jurisdiction because there was no real or substantial connection between subject mat- ter of action and Ontario. Mo- tion was dismissed. Court could assume jurisdiction. Ontario was convenient forum for litigation. No other jurisdiction could be identified as being more conve- nient than Ontario for resolution of dispute. There was significant connection between plaintiff's claim and Ontario. There was connection between defendant and Ontario given defendant's products were marketed and con- sumed in Ontario. It was not un- fair for defendant to be required to defend itself in Ontario. It was more unfair to force plaintiff to litigate in United States. Rela- tionship between parties met test of minimum contacts. A1 Pressure Sensitive Products Inc. v. Bostik Inc. (Dec. 18, 2009, Ont. S.C.J., Stinson J., File No. 07-CV-344028) 183 A.C.W.S. (3d) 720 (10 pp.). LETTERS ROGATORY Enforcement of letters rogatory was declined United States Court issued letters rogatory in patent infringement

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