Law Times

Law Times • June 14, 2010 presented by personal charac- teristics. Trial judge rejecting long-term off ender sentence as not reasonably possible to con- trol risk posed by accused after completion of sentence. Appeal dismissed. Trial judge did not misconstrue long-term off ender provisions as accused failed to meet generous threshold of be- ing reasonably possible to con- trol after termination of order. Indeterminate segregation from public required for protection from pedophiles such as accused, for whom there was no reason- able possibility of control of risk posed to community. Fresh evidence would not reasonably impact result as demonstrated no meaningful reduction in risk posed by accused. R. v. B. (D.V.) (Apr. 20, 2010, Ont. C.A., Moldaver, Cronk and Armstrong JJ.A., File No. C37727) 87 W.C.B. (2d) 745 (45 pp.). Trial ACCUSED NOT REPRESENTED BY COUNSEL Curtailing self-represented accused's examinations may have prevented him from making full answer and defence Appeal from conviction of threatening. Accused was self- represented at trial and argued trial judge erred in limiting his cross-examination of Crown's witness and during his exami- nations-in-chief; also that trial judge improperly questioned witnesses and inappropriately assessed accused's credibility. Ap- peal allowed, new trial ordered. Trial judge provided assistance to accused, taking pains to ex- plain process and evidentiary issues such as relevance and ma- teriality. Accused had diffi culty maintaining focus on matters relevant to off ence charged and framing his questions properly. Judge curtailed accused's cross- examination of complainant, his examination-in-chief of mother of complainant witness and po- lice witness. Accused wished to explore an altercation that oc- curred two days before alleged off ence. Crown was permitted considerable latitude to question about those events but accused was not given same opportunity, on basis they were not relevant. Trial judge may have fallen into error by engaging in propensity reasoning. Accused was given no guidance as to how to set groundwork to declare witness hostile. Having said prior events were irrelevant, trial judge erred in using them to assess accused's credibility. Curtailing accused's examinations may have prevent- ed him from making full answer and defence. R. v. Cromwell (Mar. 30, 2010, Ont. S.C.J., Rady J., File No. 670) 87 W.C.B. (2d) 755 (6 pp.). SUPREME COURT OF CANADA Municipal Law TAXATION There was fundamental flaw in interpretation of Payments in Lieu of Taxes Act (Can.) and Regulations by Montreal Port Authority and Canadian Broadcasting Corp. Montreal Port Authority ("MPA") and Canadian Broad- casting Corporation ("CBC"), as Crown corporations included in Schedule III to Payments in Lieu of Taxes Act (Can.) ("PILT Act"), made payments in lieu in respect of City of Montreal's property taxes. City abolished occupancy tax on occupants of non-residential immovables who engaged in commercial or professional activities and estab- lished variable-rate property tax that would enable it to recover income lost from abolition of occupancy tax. MPA and CBC refused to pay amounts claimed by city, which were calculated using one of rates applicable to non-residential immovables. Relying on their broad discre- tion under PILT Act and Crown Corporation Payments Regula- tions (Can.), they fi xed tax rates they considered appropriate and deducted amounts equivalent to portion of property tax increase that resulted from abolition of occupancy tax. MPA also ex- cluded value of silos and piers at port of Montreal from basis for calculating PILTs. Federal Court allowed city's applications for judicial review, fi nding that federal Crown corporations not authorized to disregard tax rate generally applicable to owners of non-residential immovables nor were they authorized to deduct equivalent of abolished occu- pancy tax in calculating PILTs. Court held that MPA entitled to exclude piers from basis for calculating PILTs but not silos. Federal Court of Appeal set aside Federal Court's decisions and dismissed applications for judicial review but corrected tax rate used by CBC, which was rate for residential immov- ables consisting of fewer than six dwellings. City appealed and CBC cross-appealed. Ap- peals allowed and cross-appeal dismissed. PILT Act and Regu- lations clearly reserve decision- making power for Crown cor- porations. Crown corporations have discretion to choose rel- evant tax rate. Discretion, how- ever, must be exercised within specifi c legal framework. Ap- propriate standard of review is reasonableness. Concept of "rea- sonableness" relates primarily to transparency and intelligibility of reasons given for decision but also encompasses quality re- quirement that applies to those reasons and to outcome of de- cision-making process. Neither transparency nor intelligibility of corporations' decisions in is- sue. Th ere was fundamental fl aw, however, in interpretation of PILT Act and Regulations by MPA and CBC. While corpo- rations had discretion, calcula- tions to be based on actual tax situation in place where federal property located. PILT Act and Regulations require that tax rate be calculated as if federal prop- erty taxable property belong- ing to private owner. MPA and CBC not entitled to determine CASELAW tax rate based on system that no longer existed. Th ey were required to calculate eff ective rates having regard to fact that business occupancy tax no lon- ger existed. Decisions of MPA and CBC also inconsistent with object of PILT Act and Regula- tions to deal with municipalities fairly and equitably. Way they exercised their discretion led to unreasonable outcome that jus- tifi ed exercise of Federal Court's power of judicial review. Same conclusion applies with respect to MPA's silos. Silos cannot be considered reservoirs. Parlia- ment did not see fi t to exclude them from basis for calculating PILTs and MPA's interpreta- tion inconsistent with words of statute, with Parliament's inten- tion, and ordinary meanings of words excluding reservoirs used in Schedule II to PILT Act. Conclusion that CBC's decision unreasonable suffi ced to dispose of cross-appeal. Montreal (City) v. Montreal Port Authority (Apr. 15, 2010, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Roth- stein and Cromwell JJ., File No. 32881; 32882) Decision at 301 D.L.R. (4th) 202, 171 A.C.W.S. (3d) 944 was varied. 187 A.C.W.S. (3d) 623 (36 pp.). FEDERAL COURT Employment PUBLIC SERVICE Reviewer applied wrong test by ask- ing what Canada Revenue Agency should have done when it became aware of error, rather than asking whether its actions were arbitrary Application by employee for judicial review of Independent third party reviewer's decision dismissing applicant's request for recourse with respect to in- ternal staffi ng decision of Can- ada Revenue Agency ("CRA"). Applicant was collections of- fi cer at CRA and, in October 2008, was appointed to perma- nent position following staffi ng call. Less than one month later, CRA cancelled applicant's ap- pointment and re-ran selection process because of errors in fi rst exercise. Another candidate was appointed this time. Applicant applied for recourse and re- viewer found that, even though no employees had complained about initial staffi ng process, CRA was entitled to revoke appointment to correct errors. Applicant argued CRA acted arbitrarily by revoking his ap- pointment. CRA revoked em- ployment off er and re-ran selec- tion process when it discovered it had failed to send call letter to an eligible employee and failed to specify position as perma- nent. Applicant re-applied in second call but the successful applicant was an employee who had withdrawn from fi rst call because she did not think posi- tion was permanent. Applica- tion allowed. Reviewer applied wrong test by asking what CRA should have done when it be- www.lawtimesnews.com came aware of error, rather than asking whether CRA's actions were arbitrary. Staffi ng program recourse principles provided predictable and transparent pro- cess for redress and CRA's inter- vention on general principles rather than egregious error was not transparent or predictable. Reviewer exaggerated signifi - cance of administrative errors and misunderstood operation of staffi ng program, so decision was unreasonable and remitted to diff erent reviewer. McLaughlin v. Canada (At- torney General) (Apr. 13, 2010, F.C., Mandamin J., File No. T-1022-09) 187 A.C.W.S. (3d) 732 (14 pp.). Intellectual Property Industrial And PATENTS Competitor's ice skates infringed patent Action by patentee against competitor for damages and injunctive relief for patent in- fringement and inducing pat- ent infringement. Patentee manufactured and marketed hockey equipment. Certain type of ice skate had tradition- ally been manufactured using separate segments called "quar- ters" on inner and outer side of ankle. Quarters were topped off by separate pieces that served as tendon guards. Patentee owned patent covering ice skate whose quarters on each boot were made from single piece of ma- terial such that quarters did not have to be sewn together. PAGE 15 In addition to one-piece quar- ters, patent specifi ed placement of tendon guard in particular manner. Competitor contract- ed with Canadian company to manufacture ice skates that had one-piece quarters and sim- ilarly-placed tendon guards. Competitor sold these skates in Canada, United States and Europe. Action allowed. Com- petitor's skates infringed pat- ent so competitor was liable for selling infringing product in Canada and inducing Ca- nadian company to infringe patent. Patentee was granted declaratory and injunctive re- lief while monetary remedies were to be determined at sepa- rate hearing. Competitor failed to establish invention had been disclosed to public prior to ap- plication for patent. Limited disclosure pursuant to confi - dentiality agreements for test- ing and feedback purposes did not amount to disclosure to public. Use of one-piece quar- ters with specifi cally-placed tendon guards would not have been obvious to person skilled in art. Nothing indicated any- one had ever turned their mind to such feature. Invention had utility since it made for better- crafted and lighter skate at less expense. Patent did not mis- represent nature of problems that were overcome by use of one-piece quarters. Bauer Hockey Corp. v. Eas- ton Sports Canada Inc. (Apr. 2, 2010, F.C., Gauthier J., File No. T-237-02) 187 A.C.W.S. (3d) 822 (124 pp.). LT When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. You can print or download PDFs of both reported and unreported decisions – no photocopying required. BestCase allows you to track research, generate reports and manage your passwords using the Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! For more information visit canadalawbook.ca

• Cover
• Escalating Claims
• Bylaw Reform
• Focus On Real Estate Law