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PAGE 14 CaseLawLaw FEDERAL COURT Intellectual Property Industrial And TRADE MARKS "Stenner" had not acquired its own distinctiveness Applications pursuant to s. 57 of Trade-Marks Act (Can.), to expunge the registration STENNER in association with wares being publications regard- ing financial services and invest- ments and in association with services being financial services and the provision of seminars and radio programs in the field of financial services and invest- ments. Respondent had not provided financial services since 1988 and it had not filed returns since 1988 because it had no income. Survey evidence estab- lished that name "Stenner" had virtually no recognition outside Vancouver and Lower Main- land. 16.8% recognition of name in Vancouver in relation to financial services or products but generally not in relation to any particular person or com- pany. To extent there was recog- nition of particular person there was little difference between fa- ther, daughter and son. Applica- tions granted. Survey evidence dealt with relevant universe in context of distinctiveness. Con- suming public for type of prod- uct with which trade mark used reasonable universe. Any use of "Stenner" always in conjunc- tion with other words. Stenner was surname and not one which acquired its own distinctive- ness. Continually changing use of other words in conjunction with "Stenner" detracted from any suggestion "Stenner" had acquired distinctiveness itself at time of application. Absence of use of actual word/mark alone in conjunction with services or wares would justify expunge- ment. Even if name was valid mark at time registration grant- ed, whatever distinctiveness it may have had was lost by time of application. Absence of use and results of survey evidence established this lack of distinc- tiveness. CIBC World Markets Inc. v. Stenner Financial Services Ltd. (Apr. 13, 2010, F.C., Phel- an J., File No. T-2216-07) 187 A.C.W.S. (3d) 215 (20 pp.). Injunctions INTERLOCUTORY RELIEF Motion for injunction preventing eviction of applicant was dismissed Applicant was member of re- spondent First Nations Band. Following death of brother applicant returned to reserve to attend funeral. Applicant stayed with sister who at time was month-to-month tenant in housing unit of respondent company. Sister moved into deceased brother's home while applicant remained in unit. Re- spondent company demanded that applicant vacate unit as same had been assigned to ap- plicant's niece and family who were next in line on waiting list for housing on reserve. After applicant was given opportu- nity to find suitable alternate housing respondent company reiterated demand to vacate as well as shut off electrical servic- es into unit. Applicant sought judicial review of decision of re- spondent company. Applicant brought motion for interim and interlocutory injunction preventing respondents from evicting her from unit. Motion dismissed. Applicant failed to satisfy test for grant of injunc- tive relief. Assuming there to be serious issue to be tried, judge found applicant did not estab- lish that irreparable harm was to result from denial of injunc- tion. There was no evidence of concrete steps taken by appli- cant to find temporary accom- modation elsewhere. Applicant failed to explain why she could not stay with sister or other rel- atives on reserve while matter was being resolved. Applicant also did not show that balance of convenience favoured grant of injunctive relief. There was process in place for allocation of housing resources on re- serve. Applicant's act of taking over unit was not only unfair to those who played by rules but also served to undermine integrity of housing allocation process on reserve. Roberts v. Roseau River An- ishinabe First Nation (Apr. 8, 2010, F.C., Mactavish J., File No. T-498-10) 187 A.C.W.S. (3d) 219 (16 pp.). Torts ASSAULT AND BATTERY Detention and searches of foreign national were reasonable and justified under s. 98 of Customs Act (Can.) Action by foreign national for damages for arbitrary de- tention, unreasonable search, and assault. Foreign national was born in Nigeria but be- came citizen of United States. Foreign national travelled to Nigeria after shipping frozen turkeys there as part of his ex- port business. Foreign national then made last-minute stop June 7, 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: in Canada with view to find- ing cheaper turkeys. Foreign national had paid cash for his airfare and had not made ho- tel reservation. Customs offi- cer K. became impatient with foreign national after asking to see his passport. Officer K. forcefully grabbed foreign na- tional's wallet and passport. Foreign national became upset and protested. Officer K. went on break and customs officer T. took over. Officer T. searched foreign national's bags and asked him questions about his trip. Officer T. became suspi- cious and was given permission by his supervisor to detain and search foreign national. For- eign national was cautioned and he requested counsel. For- eign national brought briefcase into room where telephone was located. Officer T. asked for briefcase but foreign national refused. Officer T. reached for briefcase and foreign national held it away from him. Officer T. took foreign national to floor and held him in wrist lock un- til police arrived. Foreign na- tional was permitted to speak to counsel before being strip searched. Foreign national was required to provide three stool samples. Nothing was found so foreign national was permit- ted to leave. Action allowed in part. Foreign national was only entitled to damages for battery. Detention and searches of for- eign national were reasonable and justified under s. 98 of Customs Act (Can.). Circum- stances surrounding foreign national's entry into Canada were suspicious and were con- sistent with someone trying to smuggle drugs. Officers K. and T. nonetheless engaged in unreasonable use of force amounting to battery. Officer K. intentionally applied force to foreign national even if only indirectly through wallet. Rea- sonable persons would have perceived officer K.'s conduct as offensive. Officer T. made physical contact with foreign national for sole purpose of removing briefcase and not out of fear as alleged. Foreign national had merely tried keep- ing briefcase away from officer T. and had not intended to use it as weapon. Officer T.'s order to hand over briefcase without explanation had been unrea- sonable. Foreign national's evi- dence that he was concerned about drugs being planted in briefcase was accepted. For- eign national also interpreted demand for briefcase as indica- tion that search would proceed without opportunity to contact www.lawtimesnews.com ainmaker_LT_June2_08.indd 1 5/28/08 10:43:29 AM 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. counsel. Damages were to be assessed at subsequent hearing. Idada v. Canada (Mar. 26, 2010, F.C., Zinn J., File No. T-1238-02) 187 A.C.W.S. (3d) 301 (51 pp.). ONTARIO CIVIL CASES Civil Procedure COSTS Awarding costs on substantial indemnity scale in circumstances was clearly wrong Master erred in law in order- ing defendants to pay substan- tial indemnity costs. Award of substantial indemnity costs against one party where both parties were obliged to disclose documents they both had in their possessions, and where one party came forward with documents that could funda- mentally affect litigation was not in circumstances fair ex- ercise of master's discretion. Awarding costs on substantial indemnity scale in circum- stances was clearly wrong and reflected failure to consider principle that costs on higher scale are reserved for egregious or extraordinary conduct. Mas- ter made no such finding with respect to defendants. Mas- ter's reference to costs as "costs thrown away" was incorrect. If parties could not settle costs of motion, they shall deliver brief written submissions on costs within 30 days. Casboro Industries Ltd. v. Royal Composites Co. (Mar. 29, 2010, Ont. S.C.J., Allen J., File No. 05-CV-301279PD2) Decision at 184 A.C.W.S. (3d) 65 was reversed. 187 A.C.W.S. (3d) 45 (8 pp.). Insurance AUTOMOBILE INSURANCE Payment by insurer was deemed not to be admission of liability in light of express provisions of release document Motion by plaintiffs at outset of trial for rulings that: (1) defen- dant insurer bound by previous admission that plaintiff sus- tained serious injuries in motor vehicle accident that resulted in complete inability to engage in any employment; (2) ruling that insurer not entitled to take position that plaintiff's injuries do not exceed verbal threshold established under s. 267.5(5) of Insurance Act (Ont.); and (3) ruling that insurer not en- titled to take position plain- tiff's injuries not caused by motor vehicle accident. As insurer of both plaintiff's son and husband, insurer was in- surer to whom plaintiff looked for payment of Statutory Ac- cident Benefits - Accidents on or After November 1, 1996, O. Reg. 403/96 ("SABS"). By reason of uninsured status of other vehicle and its driver, plaintiff entitled to sue insurer under uninsured motorist pro- visions of insurer's policies for her tort damages. Insurer cut off plaintiff's income replace- ment benefits after 104 weeks on basis she did not meet test for eligibility on basis she was not suffering from complete inability to engage in any em- ployment for which she was reasonably suited by educa- tion, training or experience as result of accident. Settlement reached in respect of plaintiff's income replacement benefits entitlements, both past and future, in advance of arbitra- tion before Financial Services Commission of Ontario. Full and final release included pro- vision that payment deemed to be no admission on part of insurer and further that such liability was expressly denied. Motion dismissed. Payment by insurer was deemed not to be admission of liability in light of express provisions of release document. Not now open to plaintiff to rely on payment as admission that would assist her in proving case in tort action. Plaintiff had not satisfied first pre-condition of issue estop- pel that issue must be same as one decided in prior decision. No hearing on merits and no adjudication by arbitrator of dispute between parties. Un- warranted stretch to point to dismissal order of arbitrator as tantamount to determination of liability issue given that an- other element of resolution was recitation and acknowledge- ment by plaintiff that there was no admission of liability by insurer. Dismissal order by insurer not a decision in prior proceeding of any issue to be decided in tort action. Insurer adhered to firewall principle where it found itself involved not just as SABS's provider but also in tort proceeding as party defendant to uninsured motorist coverage. Doctrine of abuse of process should not be applied to prevent insurer from advancing full defence. Submission that concession for SABS's purposes equated to concession for tort purposes would lead to erosion of fire- wall to detriment of integrity of overall system.

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