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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Publication Bans And Restrictions Mandatory JUDICIAL INTERIM RELEASE Mandatory publication ban at bail hearings is justified limit on right to freedom of expression publication ban at bail hearings in s. 517 of Criminal code challenged in high profi le cases in Alberta and Ontario. Alberta Court of Appeal upholding ban while Ontario Court of Appeal read it down. Appeal from Alberta judgment dismissed while On- tario appeal allowed. Manda- tory ban is justifi ed limit on right to freedom of expression. Ban is integral part of measures designed to ensure trial fairness and expeditious bail hearings. Need to avert disclosure of un- tested prejudicial information and ensure certainty and time- liness outweighs deleterious ef- fects of ban. Toronto Star Newspapers Ltd. v. Canada (June 10, 2010, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Roth- stein and Cromwell JJ., File No. 33085; 32865) Decision at 239 C.C.C. (3d) 437, 81 W.C.B. (2d) 454; 236 C.C.C. (3d) 204, 79 W.C.B. (2d) 704; 239 C.C.C. (3d) 437; 81 W.C.B. (2d) 454 affi rmed. 88 W.C.B. (2d) 194 (51 pp.). FEDERAL COURT OF APPEAL Industrial And Intellectual Property TRADEMARKS Application to expunge marks was properly dismissed Respondent registered trade- marks using parties' family name, "MIRANDA", in asso- ciation with design and instal- lation of windows, doors and aluminum railings and other home renovation products. Ap- pellant's application to expunge marks was dismissed. Appeal dismissed. Judge found respon- dent did not misrepresent date of fi rst use of mark when ap- plying to register. Judge found parties' family name acquired distinctiveness either by date when respondent applied to register or date when appel- lant commenced proceedings. Judge found name did not falsely suggest connection with living person. Judge made no error in fi ndings. Miranda Aluminum Inc. v. Miranda Windows & Doors Inc. (Apr. 16, 2010, F.C.A., Noel, Evans and Dawson JJ.A., File No. A-382-09) Decision at 178 A.C.W.S. (3d) 1030, 76 C.P.R. (4th) 47 was affi rmed. 188 A.C.W.S. (3d) 840 17 pp.). FEDERAL COURT Courts ABUSE OF PROCESS Release was enforceable and barred request for damages Application by former tenant for order requiring respondent to correct its practices, publish notice of corrective action tak- en, pay $30,000 damages and costs. Respondent was non- profi t housing corporation that applicant lived in from 1993 to 2007. Respondent's board commenced eviction proceed- ings against applicant and ap- plicant retained lawyer who submitted medical evidence to support request for adjourn- ment. Board declined to ad- journ proceedings and voted to evict applicant. Applicant appealed and board distributed notices to 100 special numbers that included copies of appli- cant's medical records. Board dismissed applicant's appeal and commenced action when she refused to vacate. Appli- cant counterclaimed for dam- ages for breach of privacy and harassment. Applicant and re- spondent settled. Respondent July 26, 2010 • law Times Follow on www.twitter.com/lawtimes COURT DECISIONS Untitled-3 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: 5/5/10 3:55:30 PM These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 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. argued that release signed at settlement barred this applica- tion. Application dismissed. Applicant's privacy complaint before Human Rights Com- mission continued and com- mission had recommended respondent change its by-laws, which respondent took seri- ously. Applicant had moved away, so there was no basis for ordering respondent to correct practices and publish notice. Release signed by ap- plicant was entitled "Full and Final Release" and parties were represented by counsel and of relatively equal bargaining power. Release specifi ed that applicant released respondent from all actions and damages. As this application was based on same facts already occurred and litigated, release acted as bar. Respondent paid valuable consideration for release and parties acted as though it was a complete release, so fact that applicant proceeded with pri- vacy complaint did not change fact that release was enforceable and barred request for damag- es. Application dismissed with costs to respondent. Arcand v. Abiwyn Co-operative Inc. (May 13, 2010, F.C., O'Keefe J., File No. T-788-09) 188 A.C.W.S. (3d) 689 (23 pp.). Immigration REFUGEE STATUS Panel unreasonably imposed obligation on child to seek state protection for herself Application for judicial review of decision refusing applicant's refugee protection application. Applicant was citizen of St. Vincent and Grenadines. Ap- plicant had lived with mother and stepfather, her only family there. Stepfather began sexually assaulting applicant when she was 12 years old and threat- ened to kill her and her mother if they reported him to author- ities. Sexual assaults continued until mother helped applicant escape to Canada when she was 17 years old. Applicant hid with mother's friend for several years until she gave birth and had to move into shelter. Once in shelter, applicant learned she could claim protection. Panel found state protection was available in St. Vincent and applicant made no eff ort to obtain it. Panel found there, despite problems with violence against women in St. Vincent, there were laws against abuse and rape and application could safety return as adult. Appli- cant argued panel completely disregarded her personal cir- cumstances. Application al- lowed. Panel unreasonably imposed obligation on sexu- ally molested child to seek state protection for herself. Panel ig- nored portions of relevant evi- dence. Panel cited document to support its conclusion state protection existed, yet failed to mention same document later stated offi cers were poorly trained, ineff ective and insensi- tive to victims. Panel relied on social programs and shelter to support conclusion applicant could safety return, yet failed to mention that documents noted it was not clear whether social programs were available for victims of violence and shelter had been promised to citizens for years but was never built. Panel failed to consider appli- cant had no other family in St. Vincent and Grenadines and would likely be unable to es- tablish herself independently. James v. Canada (Minister of Citizenship and Immigration) (May 18, 2010, F.C., Main- ville J., File No. IMM-5039- 09) 188 A.C.W.S. (3d) 826 (15 pp.). Labour Relations ARBITRATION Applicant had no legal right to pay for work not performed Application for judicial review of respondent's decision deny- ing applicant's request for ret- roactive appointment to higher position. Respondent was re- sponsible for developing and administering program gov- erning staffi ng. Applicant was a fi nancial reviewer who was unsuccessful in selection pro- cess for promotion to senior fi nancial reviewer position. Applicant complained THERE IS A DIFFERENCE RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Untitled-5 1 Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca www.lawtimesnews.com 3/23/10 11:35:15 AM about selection process and Inde- pendent Th ird Party Reviewer ("ITPR") directed respondent to correct error. Respondent reassessed candidates and of- fered position to applicant, eff ective March 25, 2009. Ap- plicant argued he should have been paid retroactively to July 4, 2006, the date he should have been appointed after ini- tial selection process. Respon- dent refused on basis applicant had not done work of senior fi nancial reviewer during retro- active period. Applicant argued that his request was standard in labour arbitration so respon- dent erred in law. Application dismissed. Decision was within applicant's supervisor's exper- tise and was not a question of law, so reasonableness standard applied. Respondent's reasons were abundantly transparent. Applicant was not awarded retroactive pay because he had not done the work. Managerial decision did not require any- thing more in terms of reasons. Applicant was seeking remedy beyond what ITPR could have ordered. Retroactive pay was not part of respondent's staff - ing policy and applicant was not challenging the policy. Ap- plicant had no legal right to pay for work not performed. Macklai v. Canada Revenue Agency (May 13, 2010, F.C., O'Keefe J., File No. T-789-09) 188 A.C.W.S. (3d) 856 (22 pp.). ONTARIO CIVIL CASES Contempt Of Court PUNISHMENT Incarceration required for denunciation and deterrence Plaintiff s obtained Anton Piller orders requiring defendants to immediately permit entry into their residence to search for and preserve evidence relevant to contempt motion against their son. Orders were explained to defendants and they indicated understanding but nevertheless refused to grant entry. Orders not executed until four days lat- er. Plaintiff s' motion for order fi nding defendants in contempt

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