Law Times

Law Times • June 28, 2010 than it was to United States. Canada (Minister of Citizenship and Immigration) v. Nie (Apr. 26, 2010, F.C., Mandamin J., File No. T-1140-09) 188 A.C.W.S. (3d) 36 (11 pp.). Intellectual Property Industrial And TRADEMARKS There was not sufficient evidence that opponent's mark had any reputation Appeal pursuant to s. 56 of Trade- marks Act (Can.), from decision of Trade-marks Opposition Board refusing application to register trade-mark design it proposed to use on bathroom tissue on basis that as of the date of opposition the mark was not distinctive. Board concluded opponent had satisfied evidentiary burden with respect to distinctiveness ground of opposition on basis that ap- pearance of mark on opponent's wares despite being unable to establish use under s. 4 of the Act may have resulted in an ac- quired reputation in Canada even though it was not seen until after purchase. Appeal allowed and reg- istrar directed to allow trade-mark application. Opponent could not discharge its evidential burden at law because there was not suf- ficient evidence that opponent's mark had any reputation. Board's view constituted assumption which was not fully explained and not supported by evidence. Could not assume without any evidence that Canadians retain any memory of pattern or realize it is a trade-mark that in any way indicates the source. Could not assume that Canadians' viewing of design was in any way linked to reputation of opponent. In particular context of emboss- ment pattern on bathroom tis- sue, while Canadians could have been said to have known of mark to some extent, more evidence would have been needed to show that some Canadians saw mark as indicator of source so as to es- tablish design had reputation to some extent. Seemed more likely that without such evidence that Canadians to extent they knew of opponent's mark thought of it as mere ornamentation on private label bathroom tissue. Scott Paper Ltd. v. Georgia-Pacif- ic Consumer Products LP (Apr. 30, 2010, F.C., O'Keefe J., File No. T-9-09) 188 A.C.W.S. (3d) 247 (33 pp.). TAX COURT OF CANADA Taxation INCOME TAX Appellant not liable as director for any amount that companies failed to remit Appeals from assessments of ap- pellant as director of M. Co. and it subsidiary corporations for amounts those companies for unremitted source deductions for federal income tax, provincial income tax, Canada Pension Plan premiums and Employment In- surance premiums and penalties and interest related thereto. Ap- pellant was chairman of board of M. Co.. Appeals granted. Appel- lant not liable as director for any amount that companies failed to remit. Section 227.1(3) of Income Tax Act (Can.), provides defence to director in relation to assess- ment for unremitted amounts by corporation where director exer- cised degree of care, diligence and skill to prevent the failure that a reasonably prudent person would have exercised in comparable cir- cumstances. Appellant was inside director prior to first default in remittance of payroll amounts. Analysis in relation to employee deductions dealt with separately from analysis related to unre- mitted GST/HST. Amounts for payroll deductions not funded by third party but paid from what- ever resources company might have available. Appellant pursued several options to obtain investor. Required remittances would have been made if any of these initia- tives would have been success- ful. Decision to hire additional employee in anticipation of pro- posed contract would have been reasonable decision when it was made. Appellant met standard of care required. Buckingham v. Canada (May 6, 2010, T.C.C., Webb J., File No. 2008-2817(IT)G) 188 A.C.W.S. (3d) 292 (38 pp.). ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Leave to appeal certification decision was refused Chambers judge granted plain- tiffs' motion to certify class ac- tion on behalf of individuals who participated in charitable gift program for taxation years 2003. Class action sought dam- ages and declaratory relief against promoters of program and law firm F., who delivered opinion letters relating to tax status of program for 2003, as result of disallowance by Canada Revenue Agency ("CRA") of tax benefits that plaintiffs alleged they were to have received. CRA determined that gift program was sham. As result, proposed class members had been or will be reassessed and required to pay taxes and interest on arrears arising from reassess- ment. Chambers judge conclud- ed that proposed common issues in both contract and negligence, relating to gift program defen- dants were appropriate for certifi- cation. No good reason to doubt correctness of chamber judge's analysis. More importantly, it was not desirable for leave that leave to appeal this highly fact-driven judgment be granted or that pro- posed appeal involved matters of such importance that leave to ap- peal should be granted. As for F., while it may be that claim against F. will ultimately fail, it could not be said that there was good rea- son to doubt correctness of orders issued, namely, order to certify as against F., order to decline to strike pleadings against F. and or- der refusing to strike claim against F.. Further, appeal did not involve matters of such importance that leave should be granted. CASELAW Robinson v. Rochester Financial Ltd. (Apr. 1, 2010, Ont. S.C.J. (Div. Ct.), Dambrot J., File No. 56/10; 71/10) Leave to appeal from 184 A.C.W.S. (3d) 905 was refused. 188 A.C.W.S. (3d) 40 (14 pp.). Class counsel entitled to interim fee of $1,500,000 Application by class counsel for approval of $3 million in fees, $150,000 GST and $200,284 disbursements. Settlement of class action had been approved. Defendants would pay $8.75 million with $750,000 going to administrative fund and remain- der available for settlement of individual claims. Class coun- sel estimated individual claims would not exceed $4 million. Plaintiffs had entered into re- tainer for one-third of recovery or multiple of three, whichever was greater. Application allowed in part. Class counsel devoted 7,000 hours of time collectively, in complex pharmaceutical litiga- tion spanning 10 years. Defen- dants mounted vigorous defence and there was considerable risk in class counsel taking action. Class counsel's skill ensured access to justice for claimants. However, had to ensure that adequate funds would be available for claimants, so class counsel awarded portion of claimed fees now, and could apply for remainder after indi- vidual settlements had been paid. Class counsel entitled to interim fee of $1,500,000. Boulanger v. Johnson & John- son Corp. (Apr. 21, 2010, Ont. S.C.J., Strathy J., File No. 00-CV- 197409CP) 188 A.C.W.S. (3d) 42 (5 pp.). COMMENCEMENT OF PROCEEDINGS Claim related to matters of academic nature Plaintiff sought damages based on manner in which plaintiff was terminated and reinstated to program at university. Plaintiff claimed university failed to fol- low own academic and appeal policies and procedures. Defen- dants brought motion for order dismissing plaintiff's claim. De- fendants argued claim related to academic matters and did not constitute cause of action within jurisdiction of court. Motion was allowed. Matters were of aca- demic nature. Claim for breach of contract could not succeed. Fact university had policies did not by itself support implication university intended to be contrac- tually bound by breach of them. Claim for negligence was unten- able because claim was obviously dispute as to matters of academic nature. Claim under s. 46.1(1) of Human Rights Code (Ont.), was struck out by reason of s. 46.1(2). Claim against doctor for interfer- ence with alleged university con- tract could not succeed. Aba-Alkhail v. University of Ottawa (Apr. 23, 2010, Ont. S.C.J., Spence J., File No. CV- 09369895-0000) 188 A.C.W.S. (3d) 43 (34 pp.). PLEADINGS Master did not err in denying leave to add individuals as defendants Master denied appellant's mo- tion to add two top individuals www.lawtimesnews.com in FedEx multinational group of companies as defendants in his action against his former employer FedEx Canada. Appel- lant was former employee with FedEx Canada where he held various mid-level positions. Ap- pellant pleaded that in course of his employment, he discovered irregularities and unlawful activi- ties and that when he drew them to attention of his superiors, he was targeted and suffered series of reprisals. Appellant alleged that mistreatment reached to very top of international corporate ladder. Master was not satisfied that ad- equate foundation for appellant's expanded claim had been pleaded and that there was insufficient nexus between proposed defen- dants and conduct complained of, to justify their inclusion in ac- tion. No error on part of master either in application of law, her apprehension of evidence, or in exercise of her discretion. Ghany v. Federal Express Canada Ltd. (Apr. 20, 2010, Ont. S.C.J. (Div. Ct.), McCombs J., File No. 387/09) Decision at 179 A.C.W.S. (3d) 808 was affirmed. 188 A.C.W.S. (3d) 71 (5 pp.). Conflict Of Laws FOREIGN JUDGMENTS Decision granting application to have two Russian arbitral awards recognized and enforced was set aside Respondent brought applica- tion to have two Russian arbitral awards recognized and enforced. Appellant did not participate in arbitral proceedings and moved for order that application proceed to trial or that it be granted leave to call witnesses at hearing of ap- plication. Through motion, ap- pellant sought to have court deal with its allegation that respon- dent's principal had made death threats to appellant's principal. Appellant claimed that its capac- ity to defend itself in arbitral pro- ceedings had been undermined because its witnesses were aware of alleged death threats and refused to travel to Russia and participate in proceedings because of them. It argued that it would be con- trary to public policy for Ontario courts to enforce awards without having issue of death threats re- solved. Application judge erred in failing to consider issue of alleged death threats when deciding how to respond to appellant's mo- tion and in dealing with merits of application to recognize and enforce arbitral awards. Decision granting respondent's application was set aside and enforcement application was remitted for fresh determination. Znamensky Selekcionno-Gibrid- ny Centre LLC v. Donaldson In- ternational Livestock Ltd. (Apr. 7, 2010, Ont. C.A., Gillese, Rouleau and Watt JJ.A., File No. C51225) Decision at 181 A.C.W.S. (3d) 59 was reversed. 188 A.C.W.S. (3d) 88 (8 pp.). Family Law CHILD WELFARE Child was made Crown ward without access Society brought application for order declaring child in need of protection and for child to be PAGE 17 made Crown ward without access by either parent. Mother attend- ed or completed several courses. Mother was historically unable to care for children. Mother still exhibited anger inappropriately. Mother suffered chronic depres- sion and anxiety. Mother and father had extensive criminal re- cords. Mother showed pattern of failing to act in best interests of child. No other family mem- ber came forward. Child saw fa- ther handful of times since birth. Mother suffered from mental illness and abused drugs. Child was made Crown ward without access. Child was in need of pro- tection. It was not in child's best interests to return child to mother or father with or without supervi- sion. To permit access by parents would prevent child's adoption by persons who showed ability to provide stability and meet child's needs appropriately since birth. Children's Aid Society of London and Middlesex v. K. (A.) (Apr. 28, 2010, Ont. S.C.J. (Fam. Ct.), McDermid J., File No. 1303/04) 188 A.C.W.S. (3d) 151 (15 pp.). Intellectual Property Industrial And PATENTS Plaintiff unable to establish defen- dant's actions constituted conspiracy Motion by defendant to dismiss plaintiff's action as disclosing no cause of action. Defendant had patent on Paxil prescription drug and plaintiff was a consumer of Paxil. Canadian competitor to defendant was qualified to mar- ket bio-equivalent that would have been cheaper. Defendant commenced proceedings to stop Minister from issuing Notice of Compliance ("NOC") to com- petitors. Defendant unsuccessful in several NOC proceedings but still delayed generic drugs from entering market as a result of pro- ceedings. Plaintiff argued that she suffered damages by having to pay higher drug prices. Plaintiff alleged conspiracy, abuse of pro- cess and waiver of tort. Plaintiff argued defendant was aware its NOC proceedings were without merit. Motion allowed and ac- tion dismissed. Plaintiff was not a party to NOC proceedings, so could not even satisfy first test for abuse of process allegations. Scope of abuse of process should not be extended, as argued by plaintiff, as it could thwart access to justice for other class claimants. NOC proceedings were normal part of competition among drug innova- tors and generic manufacturers so plaintiff unable to establish defendant's actions constituted conspiracy. Plaintiff established no predicate wrongdoing to sup- port waiver of tort allegation. Plaintiff's underlying allegation that defendant engaged in sham litigation was patently ridiculous and incapable of proof. Harris v. GlaxoSmithKline Inc. (Apr. 22, 2010, Ont. S.C.J., Per- ell J., File No. 09-CV-370486 CP) 188 A.C.W.S. (3d) 84 (30 pp.). Injunctions INTERLOCUTORY RELIEF Plaintiffs established strong prima facie case that real business of

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