Law Times

PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Appeal RIGHT OF APPEAL Supreme Court has jurisdiction to grant leave to appeal from order of Court of Appeal refusing or granting extension of time to appellant Appeal from order extending time to appeal. Appellant ap- plying to single judge of Court of Appeal for extension of time to serve and fi le notice of ap- peal against conviction for in- dictable off ence. Single judge of Court of Appeal dismissing application. Th ree judge panel of Court of Appeal granting ap- plication in interests of justice. Crown application for leave to appeal order extending time to Supreme Court of Canada dismissed. Supreme Court has jurisdiction to grant leave to appeal from order of Court of Appeal refusing or granting ex- tension of time to an appellant. Test for granting leave whether issue is of public importance or of such nature or signifi cance as to warrant decision by Supreme Court. Proposed appeal from order granting extension of time for appeal will rarely be issue of public importance R. v. Shea (July 15, 2010, S.C.C., LeBel, Deschamps and Cromwell JJ., File No. 33466) 89 W.C.B. (2d) 462 (10 pp.). FEDERAL COURT OF APPEAL Contracts FORMALITIES Plaintiffs to be allowed to prove existence of oral lease agreement Part performance as exception to Statute of Frauds (Ont.), barring tenants from proving existence of oral lease agree- ment. Defendant companies owned real property with family residence as well as commercial horse-boarding facilities. Plain- tiff s were in horse-boarding and stable business in Kentucky. Plaintiff s leased property from defendant companies. Th ere was no written tenancy agreement. Th ree partially-executed leases existed for two-year term. On basis of alleged oral lease agree- ment plaintiff s issued statement of claim seeking declaration of existence of valid lease with de- fendants and claiming damages for breach of contract. Plaintiff s alleged that lease agreement had four-year term and provided for obligation on defendant com- panies as landlords to conduct repairs on property as well as for suspension of rent until repairs were eff ected. One of defendant companies brought motion for order requiring plaintiff s to give up possession of property and causing partition and sale of property. Defendant asserted that plaintiff s were barred by Statute of Frauds from invoking lease agreement as same was not in writing and signed by defen- dant companies. Motion dis- missed. Plaintiff s to be allowed to prove existence of oral lease agreement. Statute of Frauds did not apply since there had been part performance of oral agreement. Doctrine of part performance was equitable in nature and designed to prevent party from avoiding liability under agreement that was lack- ing written proof. As proof of part performance judge noted that plaintiff s gave up Kentucky farm and moved onto property and that plaintiff s did work on property. Plaintiff s also paid and tendered moneys on ac- count of some rent. Plaintiff s did not pay rent consistent with alleged provision of oral agree- ment relating to suspension of rent pending repairs on proper- ty. Th ere was also acknowledge- ment by one of defendants that plaintiff s occupied property as tenants. In view of prima facie right of defendant companies as joint tenants to partition or sale of property judge made order for partition and sale subject to valid existing tenancy or lease- hold rights of plaintiff s as deter- mined in trial. OcTOber 18, 2010 • Law Times Subscribe to Law Times And receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE COURT DECISIONS earlug.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 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: 11/10/09 11:20:32 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. Heger v. Varajao (Aug. 25, 2010, Ont. S.C.J., Quinn J., File No. 50763/08) 191 A.C.W.S. (3d) 1125 (27 pp.). Courts CONDUCT OF PROCEEDINGS There was reasonable apprehension that Tax Court judge was not fair and impartial arbiter Appellant argued that Tax Court Judge deprived appellant of procedural fairness by con- sidering authorities not cited by either party without giving par- ties opportunity to make sub- missions on those authorities, considering issues not pleaded by either party without giving parties opportunity to make submissions on those issues, and intervening excessively in examination of witnesses, giv- ing rise to reasonable apprehen- sion of bias. Judge could not be precluded from referring in his deliberations to cases that were not cited by party and were not referred to in his reasons. Mere fact that judge referred to cases not cited by either counsel was not, by itself, error of law or breach of procedural fairness. Judge's reference to legal articles was not error of law or breach of procedural fairness. While judge's introduction of s. 69 of Income Tax Act (Can.) without inviting submissions was breach of rules of procedural fairness and should not have occurred, this breach did not result in det- riment to appellant. Reference to s. 69 was obiter and, as such, this particular breach, by itself, did not justify retrial. However, evidence of L. elicited by judge in course of lengthy interven- tion in which judge almost routinely took over question- ing from counsel for appellant provided evidentiary basis upon which judge relied for critical conclusion in favour of Crown. Record was such as to give rea- sonable and well informed ob- server impression that judge, during examination of L. and as result of his own questioning, adopted position in opposition to appellant on critical issue in case, giving rise to reasonable apprehension that judge was 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. not fair and impartial arbiter. Th is procedural fl aw was such that judgment could not stand, and matter must be returned to Tax Court for new trial before diff erent judge. Heron Bay Investments Ltd. v. Canada (July 29, 2010, F.C.A., Nadon, Sharlow and Layden- Stevenson JJ.A., File No. A-415- 09) Decision at 180 A.C.W.S. (3d) 516 was reversed. 191 A.C.W.S. (3d) 1334 (25 pp.). Intellectual Property FEDERAL COURT Industrial And PATENTS Invention was obvious in light of prior art Application by patentees for order prohibiting Minister of Health from issuing notice of compliance to competitor prior to expiration of related patent. Patentees' patent covered one of two mirror image versions of compound known as repa- glinide. Repaglinide was used in treatment of type 2 diabetes. Repaglinide was fi rst of particu- lar line of drugs that stimulated insulin production for short pe- riods of time rather than long periods of time. Repeated stim- ulation of insulin production for long periods of time often resulted in complete cessation of insulin production. Repa- glinide consequently had ad- vantage of not leading to cessa- tion of insulin production after repeated use. Mixture of both versions of repaglinide had been covered in two other patents. Patentees' patent covered spe- cial properties of one version of repaglinide. Competitor wished to market generic version of re- paglinide. Competitor applied for notice of compliance and served notice of allegation al- leging invalidity of patent. Ap- plication dismissed. Invention had not been anticipated since special properties of patented version of repaglinide had not previously been recognized. In- vention was nonetheless obvi- ous in light of prior art. Mirror image versions of compounds were known to have diff erent properties. While it would have been impossible to predict what diff erences might be, it was known to be important to test for such diff erences. It was self- evident that person skilled in art would have tested mirror image versions for their useful proper- ties. Further, special properties of patented version of repaglin- ide would have inevitably been discovered as result of such rou- tine testing. Competitor failed to establish patent application had been deliberately mislead- ing within meaning of s. 53(1) of Patent Act (Can.), so its as- sessable costs and disbursements were subject to 25% reduction. Novo Nordisk Canada Inc. v. Co- balt Pharmaceuticals Inc. (Aug. 3, 2010, F.C., Mactavish J., File No. T-1221-08) 191 A.C.W.S. (3d) 1258 (105 pp.). ONTARIO CIVIL CASES Agency INSURANCE AGENTS Action against insurance broker was allowed Plaintiff lost one of two sensors when drill stem operator acci- dentally caused sensor to fall to bottom of coke drum at refi nery. Plaintiff made claim through in- surance broker to insurer. Claim was denied because policy was for cargo coverage and only covered sensor while in transit. Plaintiff believed plaintiff was insured against risk and places blame for gap in coverage on broker. Plaintiff claimed damag- es against broker for negligence, breach of contract, and breach of fi duciary duty. Action was al- lowed. Confusion amongst staff at broker caused failure to bring home message that there was no on site coverage. Confusion and lack of clear communica- tion founded breach of duty of broker in accordance with what was expected of such specialized service. Plaintiff would have re- quested on site coverage. Plain- tiff was reckless in not pursuing clarifi cation from broker when 2010 CANADIAN LAW LIST Your instant connection to Canada's legal network, available in print, online and CD Rom For a 30-day, no risk evaluation call 1.800.565.6967 www.canadalawbook.ca • www.canadianlawlist.com Canada Law Book, a Thomson Reuters business • Prices subject to change without notice. www.lawtimesnews.com CLL - 1/8pg. 5X.indd 1 10/13/10 2:16:22 PM Includes a FREE digital edition! Go to: www.lawtimesnews.com

• Cover
• Legal Pioneer
• Radical Ideas
• Focus On Insurance Law