Law Times

Law Times • January 11, 2010 company to establish validity of disclaimer once it was put in issue. Pharmaceutical company failed to establish any mistake, accident, or inadvertence with respect to prior art, double pat- enting, or overbreadth as alleged. In any event, patent as disclaimed would have been invalid due to obviousness. Sanofi-Aventis Canada Inc. v. Hospira Healthcare Corp. (Oct. 22, 2009, F.C., Zinn J., File No. T-2080-07) Order No. 009/313/217 (87 pp.). NOC proceedings to be considered in isolation from impeachment action Applicant's application for order of prohibition was dismissed with finding R.'s allegations as to invalidity of patent were not shown by P. to be not justified. Federal Court of Appeal allowed appeal and issued order of pro- hibition. R. brought action for infringement against applicant and patent was declared in- valid. Appeal was pending. R. received notice of compliance. R. brought motion to set aside decision issuing order of prohi- bition and to dismiss applica- tion. Applicant brought motion to quash R.'s motion. Motion was dismissed. Federal Court did not have power to deal with disposition. Matter was finally determined. All matters were now moot. There was no reason to hear R.'s motion. Judgment given in impeachment action caused patent to expire but it did not dismiss NOC proceedings. NOC application proceedings were to be considered in isola- tion from impeachment action. Rule 399(2)(b) of Federal Court Rules (Can.), did not apply be- cause there was no fraud or s. 53 violation at issue in NOC pro- ceeding. Pfizer Canada Inc. v. Canada (Minister of Health) (Nov. 16, 2009, F.C., Hughes J., File No. T-1350-04) Order No. 009/327/011 (24 pp.). PRIVACY LEGISLATION Record did not contain personal information that should be exempted from disclosure PWGSC decided to permit dis- closure of remaining information contained in bid tendered by ap- plicant in response to request for proposals issued by PWGSC regarding provision of informa- tion technology services. Record was redacted. Applicant sought order prohibiting PWGSC from disclosing records. Application was dismissed. Record did not contain personal information that should be exempted from disclosure. Names of individu- als, personal CVs and evalua- tions were redacted from bid and were not readily discernible from reading remaining information. Some names still appeared and PWGSC was to make appro- priate redactions prior to any disclosure of remaining infor- mation. Record did not relate to trade or commerce but reflected fact applicant wanted to trade services for money. Applicant did not provide evidence of spe- cific confidential commercial information. Applicant did not provide evidence of reasonable expectation of probable harm if record were released. Brainhunter (Ottawa) Inc. v. Canada (Attorney General) (Nov. 17, 2009, F.C., Martineau J., File No. T-606-08) Order No. 009/327/010 (21 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ENFORCEMENT OF RIGHTS Relevant factors strongly favoured admission of evidence Appeal by the accused from his conviction, dismissed. Court as- sumed that the accused's right to be secure against an unreasonable search and seizure, under s. 8 of the Canadian Charter of Rights and Freedoms, was violated. It also assumed that the s. 8 breach was sufficiently connected to the obtaining of the warrant and the grounds for the accused's arrest to bring the evidence obtained under the warrant and incidental to the arrest within the reach of s. 24(2) of the Charter based on the s. 8 breach. Given the nature of the breach and the findings of the trial judge there was no basis upon which the evidence of the narcotics seized from the car, the person of the accused and from the duffel bag could be excluded under s. 24(2). Relevant factors strongly favoured admission of the evidence. R. v. Kyriakopoulos (Nov. 10, 2009, Ont. C.A., Doherty, Cronk and Watt JJ.A., File No. C48480) Appeal from 76 W.C.B. (2d) 540 dismissed. Or- der No. 009/315/087 (2 pp.). RIGHT TO COUNSEL Accused failed to show meaningful disadvantage flowing from breach of right to counsel Accused charged with impaired driving and driving "over 80" and applied to exclude evi- dence on the basis of a breach of right to counsel. Accused was stopped by an officer who determined he had been drink- ing as a result of suspicious con- duct. Accused registered a fail into an approved screening de- vice. Accused was seated in the back of the cruiser and alleged that when his rights to counsel were being read he could not hear them over the cruiser's ra- dio noise. At the detachment, while accused was awaiting a re- turn call from duty counsel, the breath technician took accused to the breath room to ask him questions. About 20 minutes latter, duty counsel returned the call and accused spoke to him in a private room. Accused re- turned to the breath room, tests were administered and accused was processed out and released. Application dismissed. Police made the initial call to duty counsel and as Court was will- ing to find accused never heard the details of his rights to coun- sel, his right to choice of coun- sel was breached. Accused failed to show a meaningful disadvan- tage flowing from the breach CASELAW of his right to counsel. Extent of the breach was technical at worst. Accused had ample time to ask about contacting other counsel and did not and was therefore not diligent in assert- ing his right. That there were no aggravating factors by police conduct was critical to Court's assessment of the breach. R. v. Srokosz (Nov. 10, 2009, Ont. C.J., O'Dea J., File No. 585/08) Order No. 009/329/011 (15 pp.). ONTARIO CIVIL CASES Arbitration APPOINTMENT OF ARBITRATOR There was reasonable apprehension of bias in firm named as arbitrator Action concerned share pur- chase agreement between par- ties. Defendant purchased all of plaintiff's shares in company. Payment was not made. Arbitra- tor acted as accounting firm for principal of defendant. Defen- dant brought motion for stay of proceedings. Plaintiff brought motion for partial summary judgment and for order appoint- ing one accounting firm from list as arbitrator. Parties intended to settle dispute regarding ad- justments by way of arbitration. Clause in agreement was arbitra- tion clause bringing Arbitration Act, 1991 (Ont.), into effect. Section 7 of Act called for stay of proceedings where Act was in ef- fect. Plaintiff was not entitled to summary judgment. There was reasonable apprehension of bias in firm named as arbitrator and firm was to be removed as arbi- trator. Another accounting firm was appointed as arbitrator. Fowler v. 1752476 Ontario Ltd. (Oct. 23, 2009, Ont. S.C.J., McCartney J., File No. CV-09- 0357) Order No. 009/313/046 (8 pp.). Civil Procedure SETTLEMENT Provision for releases in minutes of settlement indicated parties did not intend that all representations and warranties survived closing Families were involved in real estate joint ventures. Parties ex- ecuted handwritten minutes of settlement disposing of action and two applications. Intent of minutes of settlement was to allo- cate one-third of collective joint venture interests to P. group and two-thirds to D. Group. Parties agreed binding settlement was concluded and form of trans- fer was required to implement settlement. Parties disagreed about extent of warranties and representations that were to be included in transfer agreement and whether warranties were to survive closing. Provision for re- leases in minutes of settlement indicated parties did not intend that all representations and war- ranties survived closing. It was implicit that truth and correct- ness in all material respects at time of closing of material repre- sentations and warranties given was condition of closing. Order www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 6/10/09 10:43:52 AM CANADA LAW BOOK's law reports and case summaries are no longer available on Quicklaw LexisNexis. 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BestCase subscribers can now receive our eREPORTS – electronic versions of "paper parts" of our law reports. Emailed to you, the eREPORTS link from the subject index to the full reported judgment (including headnote). NEW! Disburse your costs BestCase now allows you to track research, generate reports and manage your passwords using the new Disbursement Manager. Contact your Account Manager for pricing and more information www.canadalawbook.ca • 1-800-263-2037 Canada Law Book is A Division of The Cartwright Group Ltd. issued requiring parties to com- plete transfers of shares contem- plated by minutes of settlement and associated joint venture in- terests within 14 days. C.D.C. Contracting Ltd. v. Hum- berplex Developments Inc. (Nov. 4, 2009, Ont. S.C.J., Hoy J., File No. 08-CL-7363) Order No. 009/313/052 (14 pp.). Insurance AUTOMOBILE INSURANCE Insureds surrendered rights in final release Insureds rented truck from de- fendant and loaded it with per- sonal belongings. Belongings were covered by pre-existing tenant's policy from insurer. Insureds also had policy un- derwritten by defendant. Truck caught fire and belongings were destroyed. Insureds signed re- lease in favour of defendant for amount of $25,000 but retained right to pursue defendant for amount of loss over $25,000. In exchange from payment by insurer, insureds transferred rights to insurer for amount over $30,600 and retained right to pursue defendant for amount of loss over $30,600. Insureds brought claim in tort against defendant that was settled with payment of $44,225 and signed full and final release. Insureds collected estimated replacement cost of goods. Insurer brought subrogated claim for indemnity from defendant for money insur- er paid to insureds. Application was dismissed. Defendant paid more than it was legally obli- gated to pay and there was noth- PAGE 15 ing further for insurer to attach. Insureds were entitled to actual cash value of goods at time of de- struction. Insureds surrendered rights in final release. Rights of insurer was dependent on rights of insureds. No money was ow- ing by defendant to insureds. Balsevicius v. U-Haul Co. (Can- ada) Ltd. (Oct. 9, 2009, Ont. S.C.J., deP. Wright J., File No. CV-04-0368) Order No. 009/313/124 (7 pp.). Constitutional Law CHARTER OF RIGHTS Section 65.1(8)(a) of Child and Family Services Act (Ont.) was not unconstitutional Two children were made wards of society with no right of access to be placed for adoption. One of children died while in care of foster parents. Mother brought motion for declaration that s. 65.1(8)(a) of Child and Family Services Act (Ont.), was uncon- stitutional. Mother argued pro- vision violated s. 7 of Canadian Charter of Rights and Freedoms because mother was unable to have status review until six months passed after order mak- ing children wards with no right of access. Motion was dismissed. Section 65.1(8)(a) of Act was not unconstitutional and did not violate s. 7 of Charter. Section 7 Charter rights were engaged at time of child protection hear- ing under s. 57 of Act. Death of child did not change rights. Children's Aid Society of Ham- ilton v. N. (J.) (Oct. 26, 2009, Ont. S.C.J., Turnbull J., File No. C-56/04) Order No. 009/300/054 (21 pp.). LT Find the best in… eREPORTS included for no extra charge

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