Law Times

Law times • OctOber 25, 2010 erred with respect to number of negative credibility fi ndings. Board unreasonably disregarded applicant's explanations. Board's fi nding applicant failed to make refugee claim in United King- dom could not be sustained because applicant had not trav- elled through United Kingdom. To expect applicant to provide election pamphlet used many years ago did not amount to kind of corroborating evidence that applicant could reasonably provide in comparison to docu- ments that could reasonably be expected, requested and ob- tained. Board's fi nding applicant was not credible was unreason- able given applicant's plausible explanations and documentary evidence. Board relied on ir- relevant or immaterial weak- nesses in applicant's testimony and failed to give due regard to overall evidence before it. Board did not provide suffi cient and clear notice that IFA was issue and that it was clearly addressed during course of hearing. Th ere was breach of natural justice in failing to provide applicant with opportunity to address issue of internal fl ight alternative during course of hearing and in mak- ing adverse fi nding on internal fl ight alternative. Decision was not reasonable. Ay v. Canada (Minister of Citi- zenship and Immigration) (June 21, 2010, F.C., Boivin J., File No. IMM-4149-09) 192 A.C.W.S. (3d) 259 (19 pp.). Intellectual Property Industrial And PATENTS Allegation of anticipation was not justified Application by pharmaceutical company for order prohibit- ing Minister of Health from is- suing notice of compliance to competitor until expiration of related patent. Pharmaceutical company held patent covering esomeprazole, which was used to reduce gastric acid secretions. Es- omaprazole was one of two mir- ror image versions of omepra- zole. Patent related to improved process for making highly pure esomaprazole to improve thera- peutic profi le. Competitor ap- plied for notice of compliance for generic version of esomepra- zole and served notice of allega- tion alleging invalidity of patent. Application dismissed. Allega- tion of lack of sound prediction of utility was justifi ed. Noth- ing in patent indicated whether highly pure esomaprazole re- sulted in improved therapeutic profi le. Nothing indicated either factual basis for predicting such utility or sound line of reasoning for inferring such utility. Allega- tion of obviousness was also jus- tifi ed. Producing higher level of purity than had previously been obtained would have been rela- tively easy. Allegation of antici- pation was not justifi ed. Meth- ods disclosed in prior patent did not always result in same level of purity of esomaprazole claimed in impugned patent. Astrazeneca Canada Inc. v. Apo- tex Inc. (June 30, 2010, F.C., Hughes J., File No. T-371-08) 192 A.C.W.S. (3d) 263 (71 pp.). TRADEMARKS Board's refusal to register trademark for rum upheld on appeal Appeal by applicant from board's refusal to register its "THE SPIR- IT OF CUBA" trademark for its rum. Board found mark was deceptively misdescriptive and not distinctive in association with rum so allowed the respondent's opposition. Appellant argued "spirit" meant mental condition or attitude; respondent argued "spirit" meant strong, distilled liquor. Appellant submitted four affi davits on appeal: one from its director about corporate his- tory, one from linguistics profes- sor on meaning of word "spirit", one from partner at fi rm that surveyed public opinion and one from lawyer who researched his- tory of rum industry. Respondent produced HAVANA CLUB rum. Appeal dismissed. Fresh evidence submitted by appellant merely re- peated its arguments in greater de- tail and would not have changed board's decision. Both the defi ni- tion of spirit submitted by the ap- pellant and that submitted by the respondent were valid. Board's fi nding that average Canadian would think appellant's product was rum originating from Cuba was not clearly wrong and was supported by evidence. Evidence from linguist was merely a pro- duction of dictionary defi nitions of word "spirit". Survey was not helpful as it did not ask people for their impressions of the mark in the context of rum and less than half the people surveyed were consumers of rum. Information on history of company and rum industry was relevant, but did not change anything. Board already took judicial notice that Cuba produced rum and average con- sumer would not be aware of his- torical information. Matusalem v. Havana Club Hold- ing Inc., S.A. (July 27, 2010, F.C., Martineau J., File No. T-2145- 09) Decision at 79 C.P.R. (4th) 332 was affi rmed. 192 A.C.W.S. (3d) 265 (13 pp.). ONTARIO CRIMINAL CASES Animals GENERAL Accused guilty of practising and holding themselves out as practising veterinary medicine without licence Accused corporation and two individuals who served on that corporation's board of directors, were charged with practising vet- erinary medicine without licence and with holding themselves out to public as practising veterinary medicine. Accused were parties who arranged in home eutha- nasia of suff ering animals for pet owners. Joint position of accused was that they were merely off er- ing pet owners "referral service" which simply located qualifi ed veterinarians who would at- tend pet-owners' homes to eu- thanize their animals. Each ac- cused guilty of both practising and holding themselves out as practising veterinary medicine without licence. Hostile pros- CASELAW ecution witness had admitted that he had practised veterinary medicine and held himself out as practising veterinary medicine through corporate accused dur- ing his own professional miscon- duct hearing which Crown was able to introduce after successful application to reopen its case. Although there were issues with relevant search warrant court de- clined to grant stay of proceed- ings or exclusion of evidence as business records seized were substantive evidence against ac- cused and assisted prosecution in cross-examining accused and its own hostile witness. All of com- plainants confi rmed that there was no pre-existing relationship between attending veterinarian and either paying client of suf- fering animal and that attending vet did not inquire about medi- cal history of animals nor discuss any treatment options other than euthanasia. All of clients honest- ly and reasonably believed that they were dealing directly with corporate accused rather than at- tending vet with whom they had no previous existing relation- ship. Court found prosecution witnesses were credible while ac- cused's testimony was not. College of Veterinarians of Ontario v. Greenberg-Blechman (Aug. 23, 2010, Ont. C.J., Madigan J.P.) 89 W.C.B. (2d) 622 (32 pp.). Bankruptcy BANKRUPTCY OFFENCES Accused convicted of fraudulently disposing of property and failing to disclose all assets to trustee Trial of accused for three off ences under Bankruptcy and Insolvency Act (Can.). Accused made assign- ment on February 20, 2007. He was charged with fraudulently dis- posing of property on September 12, 2006. Such property consist- ed of $158,000 bank draft which he failed to divulge to his trustee and to Superintendent of Bank- ruptcy. Second and third charges were that he failed to truthfully answer questions by failing to disclose all his assets to trustee. On September 12 accused at- tended at bank where he opened account and deposited draft into it. He then withdrew $58,000 in cash and obtained new draft in his name for $100,000. Accused then attended at another branch of same bank where he deposited $100,000 into his account and he withdrew $4,000 in cash. He also obtained another draft for $96,000. Th ere was no evidence as to what he did with that draft. Accused did not disclose his Sep- tember 12 transactions when he completed his bankruptcy docu- mentation. He was convicted of off ences. Crown proved essential facts beyond reasonable doubt with witnesses who were credible and were unimpeached and its case was supported by documents that were unambiguous. R. v. Farrell (Aug. 12, 2010, Ont. C.J., Brophy J., File No. 09 526) 89 W.C.B. (2d) 633 (10 pp.). Obstructing Justice ELEMENTS OF OFFENCE Judge erred in his interpretation of elements of offence under s. 139 of Criminal Code www.lawtimesnews.com Appeal by Crown from acquittal of accused on charge of attempt- ing to obstruct course of justice, contrary to s. 139 of Criminal Code. Trial judge found that ac- cused had friend threaten and off er benefi t to complainant in sexual assault case if she would change her story to exonerate ac- cused. Judge acquitted accused because he only attempted to have complainant tell truth as he believed it to be. Appeal al- lowed. Acquittal set aside. New trial ordered. Judge erred in his interpretation of elements of off ence under s. 139. Mens rea of off ence was made out when accused intentionally off ered improper inducement for pur- pose of dissuading witness from giving evidence, even if accused merely tried to persuade witness to tell what accused believed was truth. Crown did not need to prove that accused otherwise had improper motive. It was also no defence that accused's motive was to ensure that truth was told at judicial proceeding. Normally, appropriate disposition was to set aside acquittal and to enter conviction. However, new trial was necessary because there was no evidence that accused asked his friend to off er complainant money for shopping spree or that he threatened her. Because judge misinterpreted requisite mens rea he did not make nec- essary fi ndings as to whether accused instructed his friend to threaten complainant. R. v. Pare (Aug. 30, 2010, Ont. C.A., Rosenberg, Feldman and Watt JJ.A., File No. C50730) 89 W.C.B. (2d) 625 (9 pp.). PAGE 15 SENTENCE Accused needed to be sentenced to significant period in custody to appropriately denounce his conduct and to deter himself and others Accused sentenced to six months' imprisonment and three years' probation following guilty plea to assault causing bodily harm. While in coff ee shop, accused overheard complainant make remarks about his religion that he considered insulting. Accused punched complainant in nose several times. Accused was 20- year old fi rst off ender who was born in Iraq. Accused's mother told author of pre-sentence re- port that he had become overly religious, was on path to becom- ing extremist and that she had concerns regarding with whom her son was associating. Accused was not remorseful for assault and believed he was justifi ed by disrespectful comments made by complainant. Court was not optimistic about accused's pros- pects for rehabilitation and he was likely to reoff end. Accused needed to be sentenced to sig- nifi cant period in custody to appropriately denounce his con- duct and to deter himself and others. Crown's position of 60 days' incarceration failed to re- fl ect gravity of off ence. Accused posed danger to community and conditional sentence was inap- propriate. Conditional sentence would be inconsistent with fun- damental principles of sentenc- ing. DNA sample, weapons pro- hibition for 10 years ordered. R. v. Saad (Aug. 30, 2010, Ont. C.J., File No. Borenstein J.) 89 W.C.B. (2d) 687 (7 pp.). LT When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. You can print or download PDFs of both reported and unreported decisions – no photocopying required. BestCase allows you to track research, generate reports and manage your passwords using the Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! www.canadalawbook.ca a Thomson Reuters business

• Cover
• New ID
• Financial Recovery
• Focus On Trusts & Estates