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PAGE 16 CaseLawLaw FEDERAL COURT OF APPEAL Civil Procedure PLEADINGS Proposed amendments satisfied "plain and obvious" test Appellants had instituted sepa- rate actions against P. for in- fringing their Canadian patents relating to internet-based fac- simile services. Motions judge did not err in dismissing mo- tions by appellants appealing order of prothonotary permit- ting P. to amend some of its pleadings. In absence of non- compensable prejudice, fact that proposed amendments would effect "radical departure" in pro- ceeding was not discrete ground for refusing amendment. Pro- posed amendments satisfied "plain and obvious" test. Also, motions judge did not err in upholding prothonotary's order setting up special procedure for enabling P. to provide particu- lars of proposed amendments which prothonotary had not accepted. Prothonotary's order seemed to be creative and effi- cient solution for moving along litigation that appeared to have become bogged down by pro- viding mechanism for enabling parties to attempt to reach agreement on particulars, or narrow range of disagreement before matter returned to court. If appellants still contended that particulars provided by P. were insufficient, they may challenge amendments in court. j2 Global Communication Inc. v. Protus IP Solutions Inc. (Feb. 11, 2009, F.C.A., Desjardins, Evans and Ryer JJ.A., File No. A-331- 08; A-355-08) Appeal from 170 A.C.W.S. (3d) 49 dismissed. Order No. 009/063/011 (12 pp.). Taxation INCOME TAX Settlement payment had to be included in income Tax Court Judge properly held that surrogatum principle re- quired appellant to include settlement payment in income, notwithstanding that settlement payment and underlying expen- ditures were on capital account, considering settlement payment was intended to compensate appellant for expenditures that were deductible. Amount re- ceived by appellant from law firm was intended to replace OMB award and related legal costs that were paid by appel- lant in its 1992 to 1997 taxation years. While those expenditures were capital in nature, they were nonetheless fully deductible by appellant in taxation years in which they were paid. Amount received by appellant from law firm in its 1999 taxation year must be included in appellant's income for that taxation year. Goff Construction Ltd. v. Canada (Feb. 28, 2009, F.C.A., Desjar- dins, Evans and Ryer JJ.A., File No. A-344-08) Appeal from 168 A.C.W.S. (3d) 208, 2008 DTC 4102 dismissed. Order No. 009/070/003 (11 pp.). TAX COURT OF CANADA Taxation INCOME TAX Indexation not excluded from definition of lifetime retirement benefits Reassessment included amount transferred to appellant's RRSP on winding-up of pension plan. Minister considered amount ex- ceeded prescribed amount that could be transferred from reg- istered pension plan to RRSP without immediate tax conse- quences. Appeal was allowed. Indexation was not excluded from definition of lifetime re- tirement benefits by s. 8503(2) of Income Tax Regulations (Can.). Evidence that value of "A" in s. 8517(1) of Regulations was $19,565. Appellant met requirement whereby amount transferred to RRSP under s. 147.3(4) of Income Tax Act May 11/18, 2009 • Law TiMes COURT DECISIONS 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: 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. (Can.), was not to exceed pre- scribed amount. Yudelson v. Canada (Feb. 2, 2009, T.C.C., Bedard J.T.C.C., File No. 2006-3052(IT)G) Order No. 009/042/127 (34 pp.). FEDERAL COURT Administrative Law JUDICIAL REVIEW Internal complaint resolution process had to be exhausted before request for investigation by health and safety officer Transport Canada refused to commence workplace safety in- vestigation until completion of internal complaint resolution process. Application for judicial review was dismissed. Where employee imitated complaint under s. 127.1 of Canada La- bour Code it was necessary to exhaust internal complaint reso- lution process before employee or union could request investi- gation by health and safety of- ficer. Internal complaint process had to be exhausted before re- course to health and safety offi- cer was available for complaint that did not involve situation of ongoing danger. C.U.P.E., Air Canada Compo- nent v. Air Canada (Jan. 6, 2009, F.C., Barnes J., File No. T-197- 08) Order No. 009/033/090 (15 pp.). Parole STATUTORY RELEASE No basis to interfere with Parole Board's dismissal of inmate appeal Inmate applied for judicial re- view of the National Parole Boards appeal division decision dismissing inmate's appeal from the trial division's conclusion the inmate caused serious harm to the victim of his offences. Accused was serving a 10 year, 50 day sentence for attempted murder, two counts of assault with a weapon, forcible confine- ment and three counts of utter- ing threats against his former girlfriend. In finding that the in- mate had caused his victim seri- ous harm the board ordered that in the event that his statutory release was revoked the inmate would not be entitled to statu- tory release and imposed a num- ber of conditions on his statutory release including a residency con- dition. Because of the residency condition, inmate could not re- side with his brother, who was a police officer and had offered to take him in. Application dis- missed. There was an abundance of reliable information before the board documenting the brutal and prolonged manner in which the inmate terrorized his victim that amply supported the con- clusion he had caused her serious harm. Inmate failed to demon- strate any basis to interfere with the board's decision. Edwards v. Canada (Attorney General) (Jan. 23, 2009, F.C., Mandamin J., File No. T-1651- 07) Order No. 009/068/174 (17 pp.). ONTARIO CIVIL CASES Bankruptcy And Insolvency ARRANGEMENTS Applicants qualified for protection under Companies' Creditors Arrangements Act (Can.) Application by SSCCI and affiliated companies for pro- tection under Companies' Creditors Arrangements Act (Can.), and order extending application of initial Act order to non-applicant but affiliated Canadian partnerships. Appli- cant and affiliates the primary Canadian operating entities of North America paper and paper products producer and recycler employing 2,600 in Canada. Applicant and certain affili- ates had likewise commenced Chapter 11 bankruptcy pro- ceedings in United States. Ap- plicant group had debts includ- ing: Canadian notes totalling US$200,000,000; trade credi- tor payables of US$53,400,000 compared to $704,571 cash on hand; outstanding balance of US$38,000,000 in accounts receivable securitization pro- gram, and; six pension plans with aggregate deficiency of $132,000,000 at end of 2007. Applicants insolvent and qualify for protection. Continuation of operations as going concern preferred to liquidation of as- sets, but applicant group's previ- ously relied upon credit facilities now unavailable due to United States affiliates' bankruptcy fil- ing. Court approved monitor's proposed interim debt financ- ing to allow continued day to day operations. Act protection extended to two non-applicant partnerships on basis that those partnerships integral and closely interrelated. Proposal to pay pre-filing amounts owed to crit- ical suppliers approved, as was plan to serve notice of Act and United States Chapter 11 pro- ceedings to all applicant group creditors owed over $1,000. Court to be advised once service effected. Smurfit-Stone Container Canada Inc. (Re) (Jan. 27, 2009, Ont. S.C.J. (Comm. List), Pepall J., File No. CV-09-7966-00CL) Order No. 009/029/065 (8 pp.). Civil Procedure CLASS ACTIONS Leave to appeal certification of action arising from mad cow disease was refused Commercial cattle farmer S. brought class action on behalf of all cattle farmers resident in Canada (except Quebec) claim- ing damages for economic losses arising from discovery of mad cow disease ("BSE") in cow in Alberta in 2003 and for conse- quences of ensuing internation- al bans on importation of Ca- nadian beef and cattle. Motion judge's decision for certification of this class action was entitled to considerable deference. Fed- eral Government failed to satis- fy two-part test set out in either rule 62.02(4)(a) or (b) of Rules of Civil Procedure (Ont.). There were no conflicting decisions WHICH DIRECTION IS BEST FOR YOU? RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Untitled-7 1 Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca www.lawtimesnews.com 5/29/08 1:05:49 PM

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