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PAGE 14 CaseLawLaw FEDERAL COURT Admiralty ARREST Warrant of arrest against Crown ship invalid Motion to quash warrant of ar- rest. Plaintiff obtained posses- sion of HMCS F., decommis- sioned Navy vessel pursuant to arrangement with department of National Defence, with inten- tion that it be used as museum. Prospect failed to materialize and plaintiff proposed that vessel be sunk as artificial reef. Vessel fell into disrepair and plaintiff trans- ferred it back to Crown with agreement that if Crown decided to scrap vessel plaintiff would be allowed to make alternate pro- posal. Crown subsequently de- cided to have ship broken up for scrap and plaintiff was given six weeks to make proposal. Crown ultimately rejected proposal and made contract with another party to have ship transported to Ontario and broken up. Plaintiff commenced action against ves- sel (in rem) and caused warrant to be issued by Federal Court for arrest of vessel. Defendant brought motion to set aside war- rant of arrest. Motion granted. Section 14 of Crown Liabil- ity and Proceedings Act (Can.) ("CLPA"), expressly precludes any action in rem, i.e. actions directly against property of Her Majesty the Queen itself and expressly precludes arrest or de- tention of Crown ship or lien on Crown ship. Under CLPA mari- time claims against Crown for claims relating to Crown ships must be pursued by way of dam- ages only. Crown and Crown ships are immune from arrest, lien or any form of seizure. Here, F. is a Crown ship as defined in CLPA and Canada Shipping Act, 2001. No warrant of ar- rest can issue against F. and any warrant and subsequent arrest of that ship is invalid. Accordingly warrant is set aside as having no force or effect. Artificial Reef Society of Nova Scotia v. Canada (Sep. 1, 2010, F.C., Shore J., File No. T-1378- 10) 193 A.C.W.S. (3d) 3 (9 pp.). Intellectual Property Industrial And PATENTS Not sufficiently "plain and obvious" that paragraphs in statement of defence should be struck out Prothonotary did not err in refus- ing to strike paragraphs in state- ment of defence. In present case plaintiff had instituted action under provisions of Patent Act (Can.), seeking declaration of invalidity of 446 patent. Defen- dant, owner of 446 patent, filed statement of defence which, in addition to addressing grounds urged for invalidity of 446 pat- ent, alleged that same patent was subject of proceedings taken un- der provisions of Patented Medi- cines (Notice of Compliance) Regulations (Can.), between same parties, which proceedings had been determined in defen- dant's favour. Statement of de- fence in present action asserted that plaintiff was "by reason of res judicata, issue estoppel, co- mity and abuse of process" pre- cluded from challenging validity of 446 patent. Matters raised in statement of defence at is- sue here have not been squarely raised previously and matter was not sufficiently "plain and obvi- ous" as would warrant that they be struck out. Motion dismissed except to remove words "res ju- dicata" on consent. Apotex Inc. v. Pfizer Ireland Pharmaceuticals (Sep. 28, 2010, F.C., Hughes J., File No. T-772- 09) Decision at 190 A.C.W.S. (3d) 246 was affirmed. 193 A.C.W.S. (3d) 259 (16 pp.). FEDERAL COURT OF APPEAL Taxation INCOME TAX Time for filing notice of appeal was extended Motion by Crown to strike ap- pellant's notice of appeal on ground it was filed outside 30- day limit for filing notice of appeal. Appellant filed notice of appeal from decision of Tax Court of Canada dismissing his appeal. Appeal was heard on January 13, 2010. Formal judg- ment was signed on January 19, 2010 and on January 20, 2010 registry officer of Tax Court cer- tified true copy of judgment. On February 17, 2010, appellant filed its notice of appeal. Crown moved to strike out notice of ap- peal on ground it was filed out- side 30-day limit for filing notice of appeal, referenced from oral decision on January 13, 2010. Appellant contended that ap- peal was filed in time as judg- ment under appeal was written document dated January 19, 2010. Motion dismissed. Where judgment is pronounced orally in public, time for filing notice of appeal commences to run as November 22, 2010 • Law Times COURT DECISIONS 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: 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. of that time. Sections 17.6 and 18.24 of Tax Court of Canada Act provide that appeals under general procedure and informal procedure respectively shall lie to Federal Court of Appeal in accordance with s. 27 of Fed- eral Courts Act (Can.). Rule 167 of Tax Court of Canada Rules specifies date of pronouncement of judgment in case of written judgment. It does not have effect of displacing date of pronounce- ment of judgment where oral judgment has been pronounced before written judgment is ren- dered. Here, gap existed between oral judgment pronounced in open court and subsequent writ- ten judgment and Crown sought to take advantage of appellant's reliance on written judgment. Public should not be penalized in this way. Accordingly, time for filing notice of appeal was ex- tended until February 18, 2010 with result that appellant's notice of appeal was filed in time. 2786885 Canada Inc. v. Canada (Sep. 10, 2010, F.C.A., Pelle- tier J.A., File No. A-93-10) 193 A.C.W.S. (3d) 317 (9 pp.). ONTARIO CIVIL CASES Arbitration AWARD Motion to stay enforcement of arbi- tration award allowed Motion by applicant to stay en- forcement of arbitration award pending disposition of his ap- plication to have it set aside. Applicant was seeking to set aside both the decision striking out his defence and allowing arbitration to proceed in his ab- sence and the final disposition, in which the respondents were awarded $6.1 million damages. Respondents were shareholders who claimed applicant misman- aged corporate affairs. Respon- dents moved to strike out appli- cant's defence for non-payment of previous orders totalling $600,000. Arbitrator dismissed applicant's argument that his bankruptcy extinguished his lia- bility for previous awards. Final award was based on fraud and misappropriation by applicant. Respondents took steps to en- force award by obtaining escrow funds for sale of shares to which applicant claimed entitlement. Motion allowed. If respondents obtained escrow funds, there was no guarantee that applicant would be able to collect if he was successful. Would be prejudicial to disburse funds before deter- mination of applicant's applica- www.lawtimesnews.com tion. Applicant's argument his bankruptcy released him from liability had significant merit, since no findings of fraud had been made against him at that point. Universal Settlements Interna- tional Inc. v. Duscio (Oct. 1, 2010, Ont. S.C.J., Stinson J., File No. CV09-394439) 193 A.C.W.S. (3d) 10 (4 pp.). Civil Procedure CLASS ACTIONS Claims struck out in proposed class action Plaintiff commenced proposed class action concerning bill- ing practices of existing and proposed defendants. Plaintiff brought motion to add defen- dant and to make amendments to statement of claim. Claims against Expedia.ca which was not legal entity were struck out and statement of claim amend- ed. Proposed defendant could be added as party defendant. Definition of class period was to be struck out with leave to amend. Pleas of negligence and negligent misrepresentation were struck out. Plaintiff had leave to deliver fresh pleading to plead negligent misrepresenta- tion claim. Plea of claim under s. 36 of Competition Act (Can.), was to be struck out with leave to deliver fresh pleading. Pleas of breaches of Consumer Pro- tection Act, 2002 (Ont.), were struck out with leave to deliver fresh pleading. There was strong cause not to enforce exclusive jurisdiction clause and court de- clined to do so. Claims against Expedia Canada arising before specified date were statute- barred and claimed against Ex- pedia, Inc. arising before speci- fied date were statute-barred and class definition was to be amended accordingly. Magill v. Expedia Canada Corp. (Sep. 24, 2010, Ont. S.C.J., Perell J., File No. 09-CV- 381919CP) 193 A.C.W.S. (3d) 52 (28 pp.). Courts ABUSE OF PROCESS Doctor's action for damages arising from revocation of licence dismissed Motion by defendants for order dismissing plaintiff doctor's ac- tion. Plaintiff was practising car- diologist. Former patient made complaint to college. Doctor was suspended and ultimately his li- cense to practice in Ontario was revoked. Doctor commenced action for special and general damages for recklessness, gross negligence and malicious pros- ecution. Motion granted. Ac- tion was dismissed. Doctor was declared to be vexatious litigant. Doctor's central claim, that there was no merit to college's findings against him in relation to pa- tient's complaint, had been liti- gated on two previous occasions. Current action was yet another attempt to advance same claim. Doctor's continued pursuit of his unmeritorious claim could only be seen as harassment and oppression of college. Doctor also had repeatedly failed to pay costs orders. Deep v. College of Physicians and Surgeons of Ontario (Sep. 23, 2010, Ont. S.C.J., Mesbur J., File No. CV-08-00384918; CV-09-390652) 193 A.C.W.S. (3d) 98 (13 pp.). Family Law COSTS Wife entitled to portion of costs sought Application by wife for $39,768 costs on substantial indemnity basis. Parties signed consent order, stating wife was entitled to costs. Wife was represented; husband was not. Husband now argued that wife was not entitled to any costs. Application allowed in part. Wife's position prevailed on primary issues of support and property division. Husband caused delay by failing to provide current and accurate financial information until eve of trial. Issues were important to parties but not complex. Neither party behaved unreasonably. Wife awarded $10,000 costs, includ- ing disbursements and taxes. Tenhoeve v. Tenhoeve (Aug. 27, 2010, Ont. S.C.J., Fregeau J., File No. FS-09-0002) 193 A.C.W.S. (3d) 127 (6 pp.). Injunctions RELIEF AGAINST CROWN Ministry of Natural Resources not properly a party Motion for order restraining Ministry of Natural Resources from removing, selling or de- stroying cabin on Crown land. Moving party leased lot and Ministry cancelled lease for non- payment of rent and told mov- ing party he had until June 19, 2009, to remove cabin or else it would be disposed of. Moving party sought to appeal decision to terminate lease and Ministry responded that there was no ap- peals process. Ministry argued motion was not properly brought and should be dismissed. Mo- tion dismissed. There was no properly constituted proceeding before court, so motion could not be brought. Ministry was department of Crown and was not properly a party. Rondeau v. Ontario (Ministry

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