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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Employment INCOME TAX Transaction did not give rise to deemed dividend WRONGFUL DISMISSAL Termination for misappropriation was not excessive in circumstances Application judge erred in set- ting aside adjudicator's deci- sion to terminate employment of respondent. Judge did not accord suffi cient deference to adjudicator's conclusion, but rather clearly substituted his own assessment of evi- dence while evidence on re- cord reasonably supported adjudicator's conclusion that termination of respondent's employment on account of misappropriation was not ex- cessive in all of circumstances. It was not open to judge to reweigh factors which had been assessed by adjudicator in order to come to diff erent conclusion. Adjudicator's decision was well documented and reason- able. It should not have been interfered with. Respondent's misconduct was serious, pre- meditated, deliberate and oc- curred over long period of time. Adjudicator took into account factors relevant to ap- plication of principle of pro- portionality. Decision of judge was ordered set aside, render- ing judgment that should have been rendered. Royal Bank of Canada v. Wu (June 1, 2010, F.C.A., Le- tourneau, Pelletier and Stratas JJ.A., File No. A-437-09) Deci- sion at 182 A.C.W.S. (3d) 629 was reversed. 188 A.C.W.S. (3d) 1046 (5 pp.). Respondent family members held shares in 8855. In con- templation of their emigration from Canada, respondents en- gaged in series of transactions ultimately leading to exchange of shares for subordinate com- mon shares in company. Min- ister reassessed respondents, ruling that disposition of their 8855 shares gave rise to deemed dividend under s. 84(2) of In- come Tax Act (Can.). On ap- peal, Tax Court Judge correctly ruled that s. 84(2) did not ap- ply. Section 84(2) cannot apply because property received by respondents was never property of 8855. In this case, common shares were newly issued secu- rities and had never been prop- erty of 8855. 8855 retained its assets until it was eventually wound up into company. Th ere was no distribution or appro- priation of 8855 property and transaction therefore did not give rise to deemed dividend. Tremblay v. Canada (May 12, 2010, F.C.A., Blais C.J., Nadon and Trudel JJ.A., File No. A-61-09; A-62-09; A-64-09; A-65-09) 188 A.C.W.S. (3d) 1183 (28 pp.). FEDERAL COURT Civil Procedure TRIAL Bifurcation order set aside Appeal of prothonotary's order bifurcating liability issue from issues of damages and account- ing of profi ts found meritori- August web specials augusT 9, 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: Taxation 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. ous. Plaintiff sued defendants for patent infringement and breach of Competition Act (Can.). By motion defendants sought order bifurcating issue of liability from issues of damages or accounting of profi ts. Prothonotary granted motion and ordered bifurcation. Plaintiff appealed order arguing that lack of fi nancial information impacted plaintiff 's ability to elect between damages or accounting of profi ts. Plaintiff also contend- ed that prothonotary failed to consider relevance of fi nancial in- formation to examination of less- ening of competition under Act. Appeal allowed. While fi nancial information was necessary for plaintiff to elect between damages or accounting of profi ts there was nothing to preclude plaintiff from doing so once liability phase was completed. However, prothono- tary failed to consider whether breach of Act complained of was provable without some or all of fi nancial information that was also necessary for quantifi cation of damages or account of profi ts. Bifurcation order set aside. Garford PTY Ltd. v. Dywidag Systems International, Canada, Ltd. (May 28, 2010, F.C., Zinn J., File No. T-1270-08) 188 A.C.W.S. (3d) 1011 (13 pp.). Immigration REFUGEE STATUS Board had no duty to confront applicant with obvious discrepancies in story Application for judicial review of decision by Refugee Protection Division of Immigration and Refugee Board that applicant a citizen of Nigeria was not a Con- vention Refugee or person in need of protection. Board rejected applicant's claim after fi nding him not credible. Board found that cu- mulative eff ect of implausibilities 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. and contradictions and tendency to hide or disguise information were suffi cient to conclude appli- cant's lack of credibility extended to totality of claim. Board recog- nized applicant provided some documentary evidence support- ing some of his alleged problems. However, board relied on Nor- wegian fact-fi nding report and found that fraudulent documents and genuine documents with false information widely avail- able in Nigeria. Board gave docu- ments little weight. Application dismissed. Board had no duty to confront applicant with obvious discrepancies in story. Not unrea- sonable for board to conclude ap- plicant could not be said to have been in hiding if he was able to live at same place and work as trader throughout six-month pe- riod. Applicant's lack of credibil- ity could also be extended to all documentary evidence submitted to corroborate his version of facts. Board did not have to consider all of documentary evidence in sup- port of applicant's story. Board took into consideration availabil- ity of false documents and general lack of credibility of applicant's testimony before concluding not that documents forged but must be given little weight. Board did not commit any reviewable error in giving such documents little probative value. Lawal v. Canada(Minister of Cit- izenship and Immigration) (May 21, 2010, F.C., de Montigny J., File No. IMM-5102-09) 188 A.C.W.S. (3d) 1123 (17 pp.). Intellectual Property Industrial And COPYRIGHT Evidence established primary and secondary infringement by all defendants Plaintiff s were owners or licens- ees of copyrights in 7 musical works ("Works"). Defendants were commercial entity and its offi cers engaged in busi- ness of providing karaoke en- tertainment services to public. Without consent, authoriza- tion or license from plaintiff s, defendants acquired copies of Works and reproduced them by installing copies on to spe- cialized computer systems. De- fendants' computer system was designed to enable customers to publicly perform audio-vi- sual works. In exchange for fee, defendants authorized and per- mitted customers to select and publicly perform Works. Plain- tiff s clearly established case for summary judgment and defen- dants had not demonstrated that there was any genuine issue for trial. In fact, defen- dants had not even attempted to establish genuine issue for trial. Evidence established both primary and secondary infringement by all of defen- dants by way of reproduction, performance, importation and authorization. Defendants had knowingly traded on plaintiff s' rights for years and had shown cavalier and contemptuous attitude in face of plaintiff s' good faith eff orts to assert their rights and legitimize defen- dants' conduct. Plaintiff s were awarded $15,000 per infringed Works for total statutory dam- ages award of $105,000, plus further $100,000 in punitive damages. Plaintiff s provided defendants with all-inclusive off er to settle for signifi cantly less than damages awarded. Lump sum award of solicitor- client costs was awarded in total amount of $55,650 plus disbursements of $2,655. Entral Group International Inc. v. McCue Enterprises Corp. Competition Law Service Debt Litigation Regulatory and Corporate Liability: From Due Diligence to Risk Management The Oppression Remedy For a 30-day, no-risk evaluation call: 1.800.565.6967 CA082 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com David Morritt, Sonia Bjorkquist and Allan Coleman The Honourable T Michael G. T weedie odd L. Archibald, Kenneth E. Jull and Kent W . Roach George N. Addy and William L. V anveen

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