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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Civil Procedure DISCOVERY Civil discovery transcripts not required to be disclosed to authorities Appellant successfully appealing Court of Appeal's finding that civil discovery transcripts could be disclosed to authorities. Child suffered seizure while in appellant childcare worker's dayhome. Child suffered brain injury and civil ac- tion claiming negligence com- menced. Criminal investigation ongoing. Prior to discovery appel- lant moved to prevent authorities from accessing her discovery with- out further court order, relying on parties' implied undertaking not to use discovery documents for any purpose other than securing jus- tice in civil proceedings in which answers compelled. Attorney Gen- eral brought cross-motion to vary undertaking to permit authorities to gain access to transcripts. Un- derlying claim settled after discov- ery and appellant's discovery not disclosed in court. Both documen- tary and oral information obtained on discovery, including informa- tion thought to disclose criminal conduct, subject to implied under- taking. Such information not to be used by other parties except for purpose of that litigation unless and until scope of undertaking varied by court order or situation of immediate and serious danger emerges. Authorities had usual remedies of subpoena duces te- cum or search warrant available under Criminal Code (Can.). In absence of requisite grounds, they could not build their case on compelled testimony of appellant. Doucette (Litigation Guardian of) v. Wee Watch Day Care Systems Inc. (Mar. 6, 2008, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 31590) Appeal from 150 A.C.W.S. (3d) 1013; 269 D.L.R. (4th) 654; 31 C.P.C. (6th) 149; [2006] 9 W.W.R. 687; 374 W.A.C. 140; 55 B.C.L.R. (4th) 66 allowed. Order No. 008/070/036 (45 pp.). Evidence PRODUCTION Production order scheme does not permit judge to order compensation to third parties for compliance with orders DD LT RXQTHZE-03 S&R ad 5/23/08 3:14 PM Page 1 Third party sought exemption from productions orders issued un- der s. 487.012 of Criminal Code to provide police with call records related to criminal investigations. Ontario Court of Justice denied exemptions. Third party appealed to Supreme Court of Canada, ar- guing that compliance without compensation unreasonable. Ap- peal dismissed. Production order scheme does not permit judge to order compensation for compli- ance with orders. Legislative history reflected Parliament's intention that compensation not be paid for compliance. Ex parte procedural scheme for obtaining or revok- ing, renewing or varying order not amenable to determining whether compensation should be term of order. Conclusion that judge can- not order compensation for com- pliance accords with general moral and social duty of citizens to assist in administration of justice. Rath- er than receive compensation for compliance, third parties can apply for exemption under s. 487.015(4) (b) where burden of compliance unreasonable. Financial conse- quences must be so burdensome JUNE 2, 2008 / 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: 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 iii) faxing a copy of the completed order form to (905) 841-5085. that compliance unreasonable in circumstances. Reasonableness in- formed by variety of factors, includ- ing breadth of order being sought, size and economic viability of af- fected party, and extent of order's financial impact on affected party. Based on evidence here, third party had not demonstrated that cost of compliance with production orders unreasonable. Criminal Code, ss. 487.012, 487.015(4)(b). Ontario v. Tele-Mobile Co. (Mar. 28, 2008, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Char- ron and Rothstein JJ., File No. 31644) Appeal from 70 W.C.B. (2d) 53 dismissed. Order No. 008/091/160 (46 pp.). FEDERAL COURT OF APPEAL Constitutional Law DISTRIBUTION OF LEGISLATIVE AUTHORITY Presumption in s. 31(4) of Inter- pretation Act (Can.), cannot pre- vail to give Governor in Council authority to repeal regulation in- cluding barley in mandate of Ca- nadian Wheat Board under Part IV of Canadian Wheat Board Act (Can.), against contrary intention of Parliament. Such contrary in- tention can be found in amend- ments to Canadian Wheat Board Act that were made in 1998. Canadian Wheat Board v. Canada (Attorney General) (Feb. 26, 2008, F.C.A., Decary, Letourneau and Sharlow JJ.A., File No. A-384- 07; A-385-07) Appeal from 159 A.C.W.S. (3d) 503 dismissed. Or- der No. 008/098/028 (7 pp.). INTRODUCTORY OFFE R Search & register on-line direct through and when you call us with your feedback receive a $25.00 CARA GIFT CERTIFICATE (good for Milestones, Kelseys, etc.) For information contact your Sales Representative or contact Kim Hines at kim_hines@dyedurham.ca or 416-204-3159 / 1-800-668-8208, ext. 3159 Offer expires June 30th, 2008. One offer per new user yourONE source supplier for Office & Furniture Products • Corporate Promotional Products Printing & Graphic Services • Law Office Essentials Corporate Supplies • Search & Registration Services C OFFICE & FURNITURE PRODUCTS eservicedd.ca • Phone: 1-800-668-8208 • Fax: 1-800-667-3146 www.lawtimesnews.com PREFERRED SUPPLIER U Intellectual Property Industrial And PATENTS Failure to follow strict statutory requirements fatal to reinstatement application Applications judge correctly dis- missed application for judicial re- view of Commissioner of Patent's decision refusing appellant's pay- ment of patent application main- tenance fee and reinstatement fee. Maintenance fee was not paid on second anniversary of filing, due to clerical error on part of appellant's agent and thus patent application was deemed to be abandoned. Where patent holders fail to fol- low strict statutory requirements of Patent Act (Can.), and Patent Rules, patent application cannot be reinstated in law. Applications judge correctly concluded that ap- pellant's letter did not constitute request for reinstatement as de- scribed in s. 73(3)(a) of Patent Act. Actelion Pharmaceuticals Ltd. v. Canada (Attorney General) (Mar. 7, 2008, F.C.A., Nadon, Sexton and Ryer JJ.A., File No. A-249- 07) Appeal from 157 A.C.W.S. (3d) 160 dismissed. Order No. 008/078/005 (10 pp.). TAX COURT OF CANADA Taxation Appellant INCOME TAX Estoppel did not apply to preclude consideration of retroactive effect of journal entries directed after-the-fact accounting due to breakdown of common law relationship with in- dividual. Appellant's journal entries for two companies made in 2003 were to effect shift of debts in 1999 and 2000 owed by companies to appellant and individual. Appel- lant was assessed on basis amounts were transfer of capital property from appellant to individual. Capi- tal gains arising on disposition of debt by individual were brought into appellant's hands. Appellant argued no amounts were with- drawn in 1999 and 2000. Appeal was allowed. Estoppel did not ap- ply to preclude consideration of retroactive effect for tax purposes of journal entries. Journal entries were re-writing of history that were not binding on third parties. Loans could not have been transferred until appellant decided to do so, which was in 2003. Appellant was liable for tax on gains arising from actual withdrawals against shareholder loans in 1999 and 2000. It was illogical that deci- sion to transfer property due to breakdown of relationship could create attribution. Kaiser v. Canada (Feb. 6, 2008, T.C.C., Miller J.T.C.C., File No. 2006-1125(IT)G) Order No. 008/056/230 (20 pp.). ONTARIO CIVIL CASES Bankruptcy And Insolvency CREDITORS Motion judge erred in imposing burden of proof beyond reasonable doubt Appellant argued motion judge erred in failing to make declara- tion appellant's default judgment against respondent was debt that was not released by respondent's bankruptcy. Appeal was dismissed. Motion judge erred in imposing on appellant burden of proof be- yond reasonable doubt. Motion judge attached weight to failure of Dye & Durham Search & Registration Services connects you to over 40 Search & Registration services. Your ONE-Stop Service Provider. E W e ' r e a D y C S a 8 I n E 9 H a p N d & 9 i R m a 1 C n D o a A n Y M

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