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PAGE 14 CaseLawLaw Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Intellectual Property FEDERAL COURT Industrial And TRADE-MARKS Plaintiff failed to establish it had rights to word "masterpiece" Application to expunge defen- dant's trade-mark from register. Plaintiff and defendant both operated in retirement residence business. Plaintiff claimed that it had been using various trade- marks that included work "mas- terpiece" for about five years. In 2007, defendant registered trade-mark "masterpiece liv- ing". Plaintiff was unaware of registration and failed to op- pose it. Plaintiff alleged that it had already acquired rights to trade-mark and that defendant's trade-mark was likely to be con- fused with plaintiff's. Applica- tion dismissed. Plaintiff failed to establish that it had acquired rights to word "masterpiece" or that confusion between two trade-marks was likely. Masterpiece Inc. v. Alavida Life- style Inc. (Dec. 23, 2008, F.C., O'Reilly J., File No. T-471- 07) Order No. 009/034/296 (23 pp.). SUPREME COURT OF CANADA Extortion GENERAL Trial judge made findings necessary to justify appeal court entering conviction for extortion ment reversing his acquittal for extortion and entering convic- tion. Complainant testified that accused demanded complain- ant give him interest in com- pany in exchange for financing. Complainant also testified that accused and two accomplices demanded repayment of alleged debt on behalf of disreputable bikers' club. Trial judge acquit- ted on basis that offence alleged in indictment related to debt, not attempt to obtain inter- est in company. Quebec Court of Appeal concluded that trial judge erred in law by confusing motive for offence with its ex- istence. All necessary elements of extortion established in rela- tion to demand for repayment of debt. Judge failed to consider evidence in totality and ren- dered verdict inconsistent with evidence. Appeal dismissed. Trial judge made findings nec- essary to justify substituting conviction. Fish and Cromwell JJ., dissenting, would have al- lowed appeal in part to order new trial. R. v. Strecko (Jan. 14, 2009, S.C.C., Binnie, LeBel, Des- champs, Fish, Abella, Char- ron and Cromwell JJ., File No. 32679) Appeal from 81 W.C.B. (2d) 472 dismissed. Order No. 009/020/051 (2 pp.). ONTARIO CIVIL CASES Agency REAL ESTATE AGENTS AND BROKERS Master did not err in concluding relationship was one of debtor and creditor DD LT C QtrA-07 OP Ppr ad 3/31/09 2:24 PM Page 1 Accused appealed from judg- Plaintiff brought action to recover real estate commis- April 6/13, 2009 • 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, the Tax 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: y of notable unreported civil and criminal court decisions by the 5/28/08 10:43:29 AM 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 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 iii) faxing a copy of the completed order form to (905) 841-5085. sion from respondents. Plain- tiff brought motion for leave to amend statement of claim. Plaintiff sought certificate of pending litigation against lands that were not lands sold giving rise to commission. Plaintiff sought order adding defendants and allegations against existing defendants. Master concluded facts did not give rise to con- structive trust. Relationship was not trust relationship but was one of debtor and creditor. Ap- peal was dismissed. Master did not err. There was no tenable cause of action. Plaintiff would not suffer irreparable harm and balance of convenience fa- voured respondents. Sutton Group Professional Re- alty Inc. v. Stone (Dec. 17, 2008, Ont. S.C.J. (Div. Ct.), Carnwath J., File No. 569/08; 07-CV-339979-PD2) Order No. 008/358/121 (4 pp.). STOCKBROKERS Investment adviser did not breach duty of care Plaintiffs, Y. and estate of his deceased mother D., claimed against investment firm RBC and investment adviser H. for losses sustained with respect to investments, alleging that H. failed to meet duty of care required in investment adviser and RBC failed to adequately supervise his conduct. Main allegations raised by Y. in this action were that his accounts were over concentrated in tech stock and he suffered loss when market declined. Y. understood risks associated with concen- trated position in his portfolio. It was Y.'s own idea to purchase tech stocks. This decision was made despite H.'s caution re- garding valuation of these com- panies. In and of themselves, these purchases were generally suitable for Y.. Real issue was concentration in tech stocks that developed in his accounts. H. met any duty owed to Y. by cautioning him about this con- centration. There was nothing unsuitable for about opening margin account for Y.. Simi- larly, D. was cautioned about concentration of particular tech stock in her account. Any other breaches of duty alleged by plaintiffs, even if proven, did not cause losses suffered. Action dismissed. Young Estate v. RBC Domin- ion Securities (Dec. 17, 2008, Ont. S.C.J., Polowin J., File No. 05-CV-31905) Order No. 009/014/061 (71 pp.). Arbitration JURISDICTION Arbitrator correct in assuming jurisdiction to make order Applicant claimed oppression. Arbitration award dealt with dispute that arbitration agree- ment contained decision on matter beyond scope of agree- ment. Arbitrator determined arbitrator had jurisdiction and applicant was entitled to relief in consequence of oppression provisions. Applicant sought order enforcing awards and orders. Respondents brought cross-motion for order setting aside arbitration award. Com- pany brought cross-motion for order parties were responsible for equal share of fees and ex- penses of arbitration and for declaration there was no agree- ment by company to submit company records to arbitrator and arbitrator did not have ju- risdiction. Awards were ordered enforced. Arbitrator was cor- rect in determining arbitrator had jurisdiction to make or- der made. 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Products that have been FSC certified have been made from trees harvested according to sound forest management policies by a company that has demonstrated environmental responsibility throughout the manufacturing cycle. Learn more atwww.fsc.org. I NCE 19 9 Dye & Durham is an FSC certified company, making the commitment to responsible forestry. 1-888-393-3874 Fax: 1-800-263-2772 dyedurhambasics.ca www.lawtimesnews.com were not jeopardized. Problem respondents faced was of their own making. Award did not treat respondents unequally or unfairly. White v. Ritchie (Dec. 17, 2008, Ont. S.C.J. (Comm. List), Pepall J., File No. 06-CL-6593) Order No. 008/358/117 (14 pp.). Civil Procedure CLASS ACTIONS Fees of class counsel were approved Plaintiffs granted order approv- ing retainer agreement entered into with representative plain- tiff, order approving class coun- sel legal fees and disbursements and order that legal fees and dis- bursements and applicable taxes be paid from settlement funds available pursuant to settlement agreement between plaintiff and defendants. Retainer agree- ment satisfied requirements of s. 32 of Class Proceedings Act, 1992 (Ont.). Fee was consis- tent with retainer agreement, considerable work remained to be done by class counsel, class counsel assumed risk not only with respect to their time, but also by funding disbursements of action. Fees approved to- gether with disbursements of $89,155. Fees, disbursements and applicable taxes would be paid out from settlement funds. Lonsdale Printing Services (Trustee of) v. Cascades Fine Pa- pers Group Inc. (Dec. 22, 2008, Ont. S.C.J., Leitch R.S.J., File No. 49426CP) Order No. 008/364/061 (3 pp.). COMMENCEMENT OF PROCEEDINGS Plaintiff granted leave to correct name of party Plaintiffs brought medical mal- N Responsible Forest Management Cert no. SW-COC-002302 M Y G ' R e E V a E O N R a F p d R D m a I E n D L Y a P & D o i A n P r E D 8 D W e y C a n

• Cover
• Family Court Warning
• The Dirt
• Focus On Class Actions