Law Times

PAGE 14 CaseLawLaw Intellectual Property FEDERAL COURT OF APPEAL Industrial and TRADEMARKS No error in dismissal of appeal from Registrar's decision allowing application for name "Goulish Glamour" Appeal judge did not err in dis- missing appeal from decision of Registrar of Trade-marks allow- ing trade-mark application by respondent company involved in sale of Halloween cosmetics and eyelash accessories for name "Goulish Glamour". Appellant was magazine publisher that held trade-mark "Glamour" for its Glamour magazine. On issue of confusion, there was no fac- tual foundation for proposition that appellant had expanded scope of its "Glamour" mark by having licensed this mark to third parties. Advance Magazine Publishers Inc. v. Farleyco Marketing Inc. (Nov. 30, 2009, F.C.A., Blais C.J., Noel and Layden-Stevenson JJ.A., File No. A-132-09) Decision at 175 A.C.W.S. (3d) 215, 72 C.P.R. (4th) 96 was affirmed. Order No. 009/343/028 (5 pp.). FEDERAL COURT Administrative Law FREEDOM OF INFORMATION Documents protected by legal advice privilege Crown laid criminal charges against applicant. Charges were quashed. New charges were laid and later stayed. Applicant brought action for fraud, con- spiracy, perjury and abuse of prosecutorial power. Respondent withheld access to records from applicant in access to informa- tion request. Records were with- held pursuant to solicitor-client privilege exemption. Applicant claimed respondent kept im- proper records, processed request in bad faith and waived privilege. Application for judicial review was dismissed. Respondent com- plied with order for particulars. Draft court documents satisfied criteria for legal advice privilege. Other documents were protect- ed by legal advice privilege under s. 23 of Access to Information Act (Can.). Respondent prop- erly severed records by providing appropriate identifying informa- tion for documents undisclosed in entirety. Respondent provided applicant with all information to which applicant was entitled without revealing privileged in- formation. Respondent did not waive right to claim solicitor- client privilege. Everything that could realistically be done to comply with applicant's access request was done. Blank v. Canada (Minister of Justice) (Nov. 30, 2009, F.C., de Montigny J., File No. T-1577- 08) Order No. 009/336/041 (28 pp.). SUPREME COURT OF CANADA Labour Relations CONSTITUTIONAL JURISDICTION Labour relations of employer's Calgary branch were subject to provincial jurisdiction Employer, in freight-forwarding business, marketed itself as na- tional service and contracted with third party carriers to trans- port full truckload shipments between provinces. CP Rail used exclusively for rail carriage and none of employer's employees or equipment crossed provin- cial boundaries. Employer had branches across Canada primar- ily responsible for dealing with shippers, consignees and ac- counts receivable. Matters dealt with at regional and national levels included asset acquisition and management, pricing, stra- tegic direction, issues relating to employer's national information technology system, major con- tract negotiations and admin- istration and management of collective labour relations. Em- ployees' Association applied to Alberta Labour Relations Board ("ALRB") for declaration on whether labour relations of Cal- gary branch subject to federal or provincial regulation. ALRB held that employer's operation fell within federal jurisdiction and subject to Canada Labour Code. ALRB held that federal jurisdiction not derivative from operations of CP Rail or inter- provincial road carriers but rath- er arose out of characterization January 25, 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. 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 Single or multiple copies of the full text of any case digested in this issue can be obtained by calling CaseLaw's photocopy department at (905) 726-5419, or 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. of freight-forwarding business as one interprovincial undertaking using third party carriers to con- nect its operations. Employer's application for judicial review al- lowed. Reviewing judge empha- sized absence of physical involve- ment by employees or company equipment in physical business of interprovincial carriage of goods and declared employer's Calgary operation as falling within provincial jurisdiction. Majority of Court of Appeal set aside reviewing judge's deci- sion, finding employer operated interprovincial freight collection and delivery service through single, centralized corporate en- tity with facilities throughout Canada with Calgary operation being functionally integrated into whole. Employer's appeal allowed. Freight forwarders that are not themselves engaged in in- terprovincial transport of freight and that simply contract with interprovincial carriers remain subject to provincial jurisdiction. Employees of Calgary branch properly subject to provincial ju- risdiction. Employer operations entirely intraprovincial. Neither its employees, nor its equipment, involved in any actual interpro- vincial transport. Mere contrac- tual relationship between ship- per and interprovincial carrier does not qualify as undertaking connecting provinces or extend- ing beyond limits of province. Employer only shipper using interprovincial railway or truck- ing company. Section 92(13) of Constitution Act, 1867 provin- cial head of power over property and civil rights includes labour relations. By way of exception, Parliament may assert exclusive jurisdiction over matters in such jurisdiction is integral part of primary competence over some other single federal subject. Al- though s. 92(10)(a) of Constitu- tion Act, 1867 provides for such exception over transportation and communication works and undertakings, something more than physical connection and mutually beneficial commercial relationship with federal work or undertaking required for com- pany to fall under federal juris- diction. That something more is actual transportation of goods or persons across provincial bound- aries. Business that performs in- terprovincial transportation, in this case carrier that crosses pro- vincial boundaries, is undertak- ing that attracts federal jurisdic- tion. Labour relations of Calgary operation of employer subject to www.lawtimesnews.com provincial jurisdiction. Consolidated Fastfrate Inc. v. West- ern Canada Council of Teamsters (Nov. 26, 2009, S.C.C., McLach- lin C.J.C., Binnie, LeBel, Des- champs, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 32290) Decision at 160 A.C.W.S. (3d) 203, 285 D.L.R. (4th) 137 was reversed. Order No. 009/330/072 (66 pp.). TAX COURT OF CANADA Taxation INCOME TAX Minister was not out of time for purpose of reassessing Minister disallowed deduction claimed by appellant. Deduc- tion was claimed on account of appellant's liability under guar- antee given to Bank in United States in respect of indebted- ness of appellant's non-resident sister corporation. Appeal was dismissed. Repayment of loan to bank was result of piece of com- mercial business or manage- ment of business in which both appellant and sister corporation were involved. Repayment of loan was transaction involving appellant, sister corporation and bank. Minister was not out of time for purpose of reassessing pursuant to s. 154(4)(b)(iii) of Income Tax Act (Can.). Appel- lant's liability under guarantee became real legal obligation en- forceable at any time and came into existence in 1999. Loss was capital loss and could not be deducted from income in 1999 taxation year. Shaw-Almex Industries Ltd. v. Canada (Nov. 4, 2009, T.C.C., Lamarre J., File No. 2007-2303(IT)G) Order No. 009/316/016 (20 pp.). ONTARIO CIVIL CASES Constitutional Law CHARTER OF RIGHTS Two-year limitation period applied to claims for personal remedy under s. 24(1) of Charter Appellant sent e-mail in which she appeared to be contemplat- ing suicide. Police were notified and next day appellant was es- corted by respondent police of- ficers to hospital where she was admitted as involuntary patient for psychiatric assessment pursu- ant to Mental Health Act (Ont.). Next day, she was assessed by physician and found not to be danger to herself and released. On March 12, 2008, appellant issued claim alleging unlawful detention by respondents under Act. Motions judge correctly dismissed claim in its entirety. Appellant had actual knowledge of material facts on October 7, 2005, when limitation period began to run. Discoverability was not genuine issue for trial. Claim was outside of applicable limitation period in Limita- tions Act, 2002 (Ont.) ("LA"). Two-year limitation period in LA, applied to claims brought as individual for personal remedy under s. 24(1). Alexis v. Darnley (Dec. 2, 2009, Ont. C.A., Moldaver, Arm- strong and Rouleau JJ.A., File No. C50058) Decision at 174 A.C.W.S. (3d) 1024 was af- firmed. Order No. 009/337/047 (11 pp.). Employment EMPLOYMENT RELATIONSHIP Defendant did not honour contract to provide work Plaintiff received visa to work in Canada at defendant company. Plaintiff left employment in Germany and moved to Canada. Defendant told plaintiff to return in seven to ten days for work. Plaintiff checked in again. De- fendant indicated there was no work and to return to Germany. Defendant claimed plaintiff was told there would be work in sev- en to ten days. Plaintiff claimed defendant breached contract of employment. Defendant offered plaintiff employment. Defen- dant did not honour contract to provide work. Defendant breached offer of employment by telling plaintiff to go back to Germany. Individual defendants were not personally liable. Dam- ages for lost wages was $13,472 and claim for other damages was $14,909. Suvajac v. Ojvan (Nov. 10, 2009, Ont. S.C.J., Tucker J., File No. 06-26505) Order No. 009/315/060 (14 pp.). Limitations INSURANCE Insurer gave proper notice of Appellant refusal to pay weekly disability benefits, triggering two-year limitation period commenced action

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