Law Times

PAGE 14 CaseLawLaw FEDERAL COURT Agriculture MARKETING New regulations were valid exercise of federal trade and commerce power Application for judicial re- view challenging validity of Regulations Amending the Food and Drugs Regulations (Can.) ("FDR"), and the Dairy Products Regulations (Can.) ("DPR"). Applicants were large dairy processors operat- ing federally-registered facilities that produced and imported cheese. Applicants' cheese was made with combination of liq- uid milk and milk derivatives. New regulations harmonized definitions for milk products and revised existing identity and compositional standards for cheese in FDR and DPR. One significant impact of new regulations was requirement to use more liquid milk in cheese rather than milk derivatives. Application dismissed. New regulations were valid exercise of federal trade and commerce power. New regulations were in- tegral part of legislative schemes established by Food and Drugs Act (Can.) ("FDA"), and Can- ada Agricultural Products Act ("CAPA"), to regulate import, expert, and inter-provincial trade. Federal marketing legisla- tion directed at extra-provincial trade had never been invalidat- ed by courts. New regulations merely provided compositional standards for cheese and did not purport to prescribe legal recipe for cheese. Indeed, cheese could be made outside of composi- tional standards as long as it was not marketed as specified types of cheese. Dominant purpose of new regulations was not to transfer economic benefit to dairy producers at expense of dairy processors. New regula- tions fit squarely within objec- tive and powers outlined by s. 30(1)(c) of FDA and s. 32(f) of CAPA. New regulations established objective and uni- form standards and so were not void for vagueness. Saputo Inc. v. Canada (Attorney General) (Oct. 7, 2009, F.C., Martineau J., File No. T-1621- 08) Order No. 009/286/131 (53 pp.). Civil Procedure TRIAL Testimony of community profile witnesses to be heard in First Nations Plaintiffs applied for court to hear testimony of commu- nity profile witnesses of seven plaintiff First Nations in one or more of Williams Treaties First Nations. Plaintiffs applied for court to view communities pri- or to testimony of community profile witnesses. Application was allowed in part. Evidence of plaintiffs' community profile witnesses for three First Nations was to be heard in Curve Lake First Nation. Evidence of com- munity profile witnesses for four other First Nations was to be heard in Mnjikaning First Nation. Plaintiffs' application for viewing of First Nations community was adjourned until after hearing all of seven community witnesses. Viewing was to take place after there was evidence that provided frame- work for viewing. Alderville Indian Band v. Canada (Oct. 1, 2009, F.C., Mandamin J., File No. T-195-95) Order No. 009/286/125 (8 pp.). Immigration REFUGEE STATUS Revenge vendettas had no link to Convention grounds Application for judicial review of denial of refugee status. Ap- plicants were citizens of Israel who arrived in Canada in 2006 and claimed refugee status. Principal applicant was mem- ber of Bedouin tribe and alleged fear of returning to Israel as he was primary target of blood feud declared in 2006 by an- other family against his family. Principal applicant was target of feud as he was considered most December 7, 2009 • Law Times COURT DECISIONS ainmaker_LT_June2_08.indd 1 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: 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. 5/28/08 10:43:29 AM Single or multiple copies of the full text of any case digested in this issue can be obtained by calling CaseLaw's photocopy department at (905) 726-5419, or 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. valuable member of his family. Applicant stated that he did not contact police in Israel as police tended to not get involved in blood feuds. Evidence before board indicated that police did investigate blood feud crimes. Board rejected claims under s. 96 of Immigration and Refugee Protection Act (Can.), on ba- sis there was no nexus between blood feuds and Convention. Board rejected claims under s. 97(1)(b) of Act on basis that claimants failed to rebut pre- sumption of state protection in Israel. Application for judicial review denied. Revenge vendet- tas had no link to Convention grounds and blood feuds were not considered to be members of particular social group un- der Canadian law. Accordingly, board's decision that applicants were not Convention Refu- gees was reasonable. Applicant failed to rebut presumption of state protection. There was evi- dence before board that police did investigate crimes and had investigated blood feud crimes. There was no evidence of state protection not being forthcom- ing when members of family had reported blood feud crimes. Accordingly board's reasons with respect to availability of state protection were made with regard to evidence and were rea- sonable. Hamaisa v. Canada (Minister of Citizenship and Immigration) (Oct. 14, 2009, F.C., Near J., File No. IMM-1031-09) Order No. 009/300/019 (11 pp.). Intellectual Property Industrial And PATENTS Respondent precluded by issue estoppel from pursuing NOA Respondent served applicant NOA claiming applicant's claims pursuant to patent were void and of no effect. Appli- cant's prohibition order was granted. Judge found respon- dent failed to substantiate al- legations. Respondent's appeal was dismissed. Respondent began impeachment proceed- ings against applicant seeking declaration patent was invalid. Court found another generic pharmaceutical company's al- legations with respect to every- thing except sufficiency were not justified. Applicant's appeal was dismissed. NOC was issued to other generic pharmaceutical company. Respondent alleged invalidity of patent relying ex- clusively on decision in relation to other generic pharmaceuti- cal company and dismissal of applicant's appeal. Applicant sought declaration current NOA was abuse of process. Respondent was precluded by doctrine of issue estoppel from pursuing NOA which was null, void and of no effect. Issue to be determined in current appli- cation was same as that which was previously determined. De- cision was final and parties were same. Respondent put forth no evidence to suggest respondent could not have raised issue of sufficiency in previous NOA. Eli Lilly Canada Inc. v. Apo- tex Inc. (Oct. 19, 2009, F.C., Martineau J., File No. T-794- 09) Order No. 009/300/010 (22 pp.). SUPREME COURT OF CANADA Indictment And Information JOINDER AND SEVERANCE Lack of compelling countervailing reasons for having joint trial Accused charged in one indict- ment with counts related to two sexual assaults on separate victims and two breaches of undertaking. Assaults occurred one month apart in same city. Accused applied for order that counts be severed. Trial judge denied application, conclud- ing that interests of justice did not require severance. Accused convicted on all charges. Major- ity of Ontario Court of Appeal upheld convictions. Accused appealed. Appeal allowed. Trial judge's severance ruling was unjudicial. Trial judge failed to conduct proper balancing of relevant factors. Significant risk of prejudice to accused clearly outweighed any benefits to ad- ministration of justice in trying counts together. Risk included dangers of credibility cross- pollination and prohibited pro- pensity reasoning. Lack of com- pelling countervailing reasons for having joint trial. No risk of inconsistent verdicts and nexus between counts was tenuous. Limiting instruction should only be given where sufficient countervailing factors exist pro- viding rationale for joint trial. R. v. L. (G.E.) (Oct. 15, 2009, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Cromwell JJ., File No. 32809) Appeal from 236 C.C.C. (3d) 231, 79 W.C.B. (2d) 277 allowed. Order No. 009/288/021 (26 pp.). ONTARIO CRIMINAL CASES Breathalyzer PRESUMPTION — "EVIDENCE TO THE CONTRARY" New provisions of Criminal Code altering requirements for "Carter" defence were not unconstitutional Accused, charged with impaired driving and driving "over 80" brought an application attack- ing the constitutional valid- ity of new subsections of the Criminal Code altering the requirements to bring forward a "Carter" defence. Relevant sections were introduced after accused was charged but before trial. If the new provisions were found to be constitutional, ac- cused's counsel conceded that the Carter defence would fail in that there would be no evidence tending to show a malfunction in the machine or its operation. No infringement of the Charter. There is a distinction between a law that excludes relevant Your next best move? SMSS.COM CHARLOTTETOWN Untitled-6 1 Choose to have our IT expertise in your corner. FREDERICTON www.lawtimesnews.com HALIFAX MONCTON SAINT JOHN ST. JOHN'S 12/1/09 11:31:42 AM

• Cover
• Bar Liability
• Cadillac Treatment
• Focus On ADR/Mediation