Law Times

PAGE 14 CaseLawLaw FEDERAL COURT Constitutional Law STANDING TO CHALLENGE LEGISLATION Association of generic pharmaceutical companies had standing to challenge legislation Application for judicial review of Data Protection Regulation (Can.), enacted under s. 30(3) of Food and Drugs Act (Can.). Applicants were association of generic pharmaceutical compa- nies ("GPC") and one particular GPC. GPC's generally created generic versions of drugs that had already received approval under Act. GPC's were essen- tially permitted to rely on fact of prior approval of original drug as basis for expediting approval of generic version. Generic version would generally be approved un- less unexpired patent continued to apply to original drug. Feder- al government enacted Regula- tion pursuant to s. 30(3) of Act. Regulation introduced eight- year period of market exclusiv- ity for new drugs. Applicants contended s. 30(3) of Act and Regulation were ultra vires Par- liament. Application dismissed on other grounds. Applicant as- sociation had standing to bring application. Applicant associa- tion clearly had genuine interest in matter and was not officious intermeddler. Applicant associa- tion had public interest standing when it commenced application. No basis was shown for deciding applicant association lost public interest standing once other ap- plicant commenced separate ap- plication. Canadian Generic Pharmaceuti- cal Assn. v. Canada (Minister of Health) (July 15, 2009, F.C., Mandamin J., File No. T-1976- 06; T-2047-06) Order No. 009/245/082 (64 pp.). TAX COURT OF CANADA Taxation INCOME TAX Minister was allowed to reassess outside normal reassessment period Father purchased rental prop- erty that was to be held in equal shares for benefit of appellant and brother. Brother was in charge of maintaining rental property. Appellant relied completely on brother for filing of appellant's tax returns. Appellant never re- viewed tax returns. Appellant was not aware of mortgages tak- en out on property by brother. Interest expense was deducted in full in computing income from rental property. Property was sold by brother. Appellant claimed appellant never received proceeds of disposition of rental property. Minister disallowed all mortgage interest claimed and included appellant's share of taxable capital gain in appel- lant's income. Minister included appellant's share of recapture of capital cost allowance claimed. Minister reassessed appellant outside normal reassessment period. Appeals were allowed. There was lack of due diligence on appellant's part with respect to preparation of tax returns. Minister was allowed to reassess outside normal reassessment pe- riod because misrepresentation made could be attributed to ap- pellant's neglect. Interest mounts that were to be disallowed for first two years were those indi- cated in admission. Appeal for 2000 taxation year was allowed on basis appellant was not en- titled to interest expense, and taxable gain and recaptured depreciation resulting from dis- position of rental property were to be excluded from appellant's income. Wachsmann v. Canada (Aug. 31, 2009, T.C.C., Archambault J., File No. 2007-68(IT)G) Order No. 009/253/092 (11 pp.). FEDERAL COURT OF APPEAL Administrative Law FREEDOM OF INFORMATION Band's consolidated financial statements were not "confidential" for purpose of s. 20(1)(b) of Access to Information Act (Can.) when requester was band member This was appeal from decision of judge granting application by respondent band under s. 44(1) of Access to Information Act (Can.). E.P. lost Indian sta- tus and membership in respon- dent band when she married non-Indian. E.P. was reinstated as member. E.P. was concerned about band's failure to distribute any of its revenues so E.P. sought information about band's fi- nances. E.P. requested Minister disclose information concerning band's finances, including finan- cial statements, which band had supplied to Minister under s. 8(2)(b) of Indian Bands Revenue Moneys Order, SOR/90-297. Minister decided to disclose to E.P. financial information she had requested. On band's appli- cation judge prohibited Minis- OctOber 26, 2009 • 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. 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 Single or multiple copies of the full text of any case digested in this issue can be obtained by calling CaseLaw's photocopy department at (905) 726-5419, or 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. ter from disclosing to E.P. band's audited consolidated financial statements. Appeal allowed. Band members were entitled under s. 8(2)(a) of Regulations to read and assimilate band's financial statements and to use them for purpose of holding band chief and council account- able for management of band's revenues. Band's consolidated financial statements were not "confidential" for purpose of s. 20(1)(b) of Act when requester was band member. Section 8(2) (b) of Regulations gave E.P., as member of band, sufficiently broad right of access to band's financial statements such that they were not confidential for purpose of determining whether she was entitled to disclosure under s. 20(1)(b) of Act. Minis- ter could not refuse E.P.'s request for disclosure. Sawridge Band v. Canada (Min- ister of Indian Affairs and North- ern Development) (Aug. 12, 2009, F.C.A., Evans, Layden- Stevenson and Ryer JJ.A., File No. A-12-08) Appeal from 162 A.C.W.S. (3d) 523 allowed. Or- der No. 009/232/071 (21 pp.). ONTARIO CIVIL CASES Conflict Of Laws JURISDICTION Ontario was not appropriate forum to hear dispute Parties were separated. Father claimed mother did not inform father that child contracted highly contagious skin disease. Father contracted disease. Fa- ther brought action in Ontario for general, special, aggravated and punitive damages for inju- ries. Mother and child resided in Quebec. Father resided in Ontario and alleged damages in- curred in Ontario. All prior pro- ceedings between parties were brought in Quebec. Mother argued Ontario had no jurisdic- tion. Motion to set aside service ex juris was allowed and pro- ceedings were stayed. Mother had no connection to Ontario. It would be unfair to mother to allow proceeding to take place in Ontario. All of mother's witness- es were in Quebec and mother was impecunious. There was on- going litigation in Quebec with respect to parties financial obli- gations to each other. Real and substantial connection with On- tario did not exist. Court did not have jurisdiction to hear dispute. Ontario was not appropriate fo- rum to hear dispute. Quebec was more appropriate forum. Meunier v. Peloquin (Sep. 8, 2009, Ont. S.C.J., Torburn www.lawtimesnews.com J., File No. CV-09-370843- 0000) Order No. 009/254/040 (15 pp.). Civil Procedure AFFIDAVITS Absence of reasonable explanation for delay in filing affidavit was not fatal On cross-examination of father on father's affidavit it was appar- ent father had severe mental de- ficiencies. Daughter agreed to be designated individual to handle ongoing litigation. Daughter swore affidavit. Daughter's af- fidavit was filed couple of days late. Applicant brought motion for order permitting applicant to file daughter's affidavit in con- nection with motion brought by applicant seeking leave to bring derivative action on behalf of re- spondent. Applicant was granted leave to file affidavit containing only some of information set out in affidavit. Motion was allowed in part. There was no preju- dice to respondent in permit- ting portions of affidavit related to daughter's views on father's mental condition at time father swore affidavits to be filed. Ab- sence of reasonable explanation for delay was not fatal. Portions of affidavit were attempt to deal with merits of main motion and were not permitted to be filed. Peel Financial Services Ltd. v. OMERS Realty Management Corp. (Sep. 8, 2009, Ont. S.C.J. (Comm. List), Spies J., File No. CV-08-7650-00CL) Order No. 009/253/053 (6 pp.). PLEADINGS Motion to amend statement of claim was allowed Defendants brought motion to vary Mareva injunction to permit defendants to access funds on deposit at MMM for purpose of meeting daily living expenses and all reasonable fees pending trial. Motion request- ed $850,000. Defendants did not prove defendants required money from MMM account to pay for monthly living expenses. Motion was dismissed. Defen- dants did not fully disclose how defendants paid for legal fees. Defendants did not establish defendants were unable to ac- cess funds to pay for continuing defence of civil action. Plaintiff's motion to amend statement of claim was allowed. Having to defend against amended claims was not kind of prejudice con- templated by Rule 26.01 of Rules of Civil Procedure (Ont.). Royal Bank of Canada v. Wel- ton (Sep. 3, 2009, Ont. S.C.J. (Comm. List), Newbould J., File No. 06-CL-6797) Order No. 009/252/055 (19 pp.). Corporations RECEIVERS Receiver did not act unreasonably, arbitrarily or inappropriately in disclaiming agreement V.W. brought motion to order declaring receiver was not en- titled to disclaim exclusive sales agency agreement between V.W. and respondents. V.W. sought declaration funds were held in trust by receiver for benefit of V.W. pursuant to agreement. Re- ceiver brought cross-motion for declaration agreement was not binding on purchaser of busi- ness of respondents and receiver was entitled to sell assets of busi- ness free and clear of obligations under agreement. Motion was dismissed. Cross-motion was allowed. Receiver's report indi- cated receiver made appropri- ate inquiries and investigations prior to disclaiming contract. Receiver did not act unreason- ably, arbitrarily or inappropri- ately in disclaiming agreement. Issue of whether fees due to V.W. were held in trust for V.W. was to be addressed when court was asked to make order regard- ing distribution of proceedings of property. Agreement did not run with property. Receiver was entitled to declaration purchaser of property was not bound by agreement. Royal Bank of Canada v. Penex Metropolis Ltd. (Sep. 4, 2009, Ont. S.C.J., Strathy J., File No. CV-09-8157-00CL) Order No. 009/251/058 (12 pp.). Family Law CHILD WELFARE Reasonable grounds existed to believe child may be in need of protection Child was Crown ward when adopted by respondent. Child suffered from ADHD, devel- opmental delays and personal- ity disorders. Society brought protection application seeking conditions placed on child's con- tinued residence in respondent's home. Society was concerned respondent was isolating child from other relationships. Child was confined to respondent's house for most part. Society had difficulty gaining access to child. Child was regularly restrained for long periods of time. There were reasonable grounds to believe child may be in need of protec- tion. Order provided respondent was to use any restraint on child other than ones authorized for restraint of disturbed children in approved Ontario group homes. Respondent was to enroll in training program. Society could

• Cover
• Secrets Of Success
• Impaired Driving Laws
• Focus On Trusts & Estate Laws