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PAGE 14 CaseLawLaw FEDERAL COURT Intellectual Property Industrial And COPYRIGHT Apart from website, report had only very limited distribution Action by plaintiff for various types of relief for infringement of copyright and moral rights. Plaintiff was consultant who prepared report evaluating de- fendant E. Ltd.'s water purifi - cation technology. Report was prepared for non-party con- sultant who was going to use report in context of raising fi - nancing for E. Ltd.. Defendant B.C. modifi ed report and pro- vided copy of modifi ed report to defendant K.R., who had al- ready invested in E. Ltd.. K.R. had provided copy of modifi ed report to another investor but received it back when plain- tiff complained. Defendant R. Inc. was licensee of E. Ltd.'s technology who received copy of original report from B.C.. R. Inc. had posted original re- port on its website until plain- tiff commenced action about one year later. Action allowed in part. B.C. and R. Inc. were jointly and severally liable for statutory damages in minimum amount of $500. Sole instance of infringement was posting of original report on R. Inc.'s website. Apart from website, report had only very limited distribution contrary to plain- tiff 's allegations. Plaintiff must have consented to distribution of report among potential in- vestors since that was why he was asked to prepare report. Plaintiff had actually consent- ed to modifi cation of report contrary to his allegations. Posting of original report on R. Inc.'s website amounted to technical infringement. Noth- ing indicated anyone had even viewed report on R. Inc.'s web- site except in connection with this case. Nothing indicated defendants gained any advan- tage from use of either origi- nal or modifi ed report or that plaintiff suff ered any damages. Circumstances did not warrant punitive damages. Nicholas v. Environmental Sys- tems (International) Ltd. (July 12, 2010, F.C., Russell J., File No. T-949-05) 191 A.C.W.S. (3d) 599 (58 pp.). Labour Relations JURISDICTIONAL DISPUTES Adjudicator erroneously expanded scope of s. 2 of Canada Labour Code Adjudicator found applicant unjustly dismissed respondent. Applicant argued adjudicator erred in fi nding adjudicator had jurisdiction to determine complaint because applicant did not operate federal work, undertaking or business and was not operating in connec- tion with federal work, under- taking or business as required by Canada Labour Code. Ap- plicant sold majority of prod- ucts to third party who then sold products to operators and manufacturers of helicopters. Application for judicial review was allowed. Adjudicator er- roneously expanded scope of s. 2 of Code in determin- ing aircraft was area of activ- ity within meaning of s. 2 of Code. Fatal error was adjudi- cator's conclusion applicant operated in connection with federal work. Helicopters in and of themselves were not inherently within federal ju- OcTOber 4, 2010 • Law Times Follow on www.twitter.com/lawtimes COURT DECISIONS Untitled-3 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: 5/5/10 3:55:30 PM 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. risdiction. Applicant was not engaged in operation helicop- ters and applicant's operations were not integral to operation of helicopters. Dart Aerospace Ltd. v. Duval (July 19, 2010, F.C., Martineau J., File No. T-1947-09) 191 A.C.W.S. (3d) 481 (19 pp.). SUPREME COURT OF CANADA Sexual Offences CHILD LURING Accused's steps were neither reasonable nor taken to ascertain age of other person Accused acquitted of luring child after having sexual com- munications on computer with undercover offi cer posing as 13-year old boy. Boy insist- ed he was 13 despite computer profi le indicating his age to be 18. Accused acknowledging he took no steps to ascertain boy's real age, thinking he was 18 due to profi le. Accused point- ing to other indicia of adult- hood that did not support reasonable belief of other per- son's age. Accused's acquittals overturned on appeal. Further appeal dismissed. Where per- son represented as underage, accused presumed to believe person was underage unless evidence to contrary led by defence. Evidence to contrary must include evidence of rea- sonable steps to ascertain age of other person. Steps taken by accused were neither rea- sonable nor taken to ascertain age of other person. Criminal Code, s. 172.1(1), (3), (4). R. v. Levigne (July 15, 2010, S.C.C., McLachlin C.J.C., October web specials Binnie, LeBel, Deschamps, Fish, Abella, Charron, Roth- stein and Cromwell JJ., File No. 33450) Decision at 248 C.C.C. (3d) 337, 85 W.C.B. (2d) 414 affi rmed. 89 W.C.B. (2d) 279 (19 pp.). FEDERAL COURT OF APPEAL Contempt Of Court PUNISHMENT After pleading guilty, appellant could not argue on sentencing that he lacked mens rea Appellant pleaded guilty to two charges of contempt of court. Appellant breached permanent injunction by possessing and selling coun- terfeit software contrary to Trade-marks Act (Can.), and Copyright Act (Can.). Appel- lant ordered to pay $50,000 fi ne for each off ence, fail- ing which he would serve 60 days' imprisonment. Appeal from sentence dismissed. Af- ter pleading guilty, appellant could not argue on sentencing that he lacked mens rea. Judge did not err in principle, fail to consider relevant factor or overemphasize factor. Appel- lant showed total disregard for law and malicious and selfi sh contempt for courts. Unlawful acts were motivated by greed, challenged judicial authority and violated statutes. Sentence not demonstrably unfi t. 9038-3746 Quebec Inc. v. Mi- crosoft Corp. (June 10, 2010, F.C.A., Letourneau, Noel and Trudel JJ.A., File No. A-627- 08) 191 A.C.W.S. (3d) 1071 (9 pp.). ONTARIO CIVIL CASES Contracts TERMS Plaintiff entitled to 80% of net proceeds of lottery win Claim for judgment relating to proceeds of lottery win. Plain- tiff , a United States citizen, bought tickets but put tickets in name of defendant. Defen- dant told plaintiff there was not Canadian tax on lottery win- nings and that plaintiff would have to pay United States tax if he won lottery. Defendant pro- posed to plaintiff that lottery tickets be put in defendant's name so that plaintiff could avoid paying United States tax on winnings. Defendant would collect winnings and give por- tion back as gift as plaintiff would not have to pay United States tax on gift. Plaintiff indi- cated he would agree to 80/20 split. Judgment for plaintiff for 80% of net proceeds. De- fendant shifting position with shifting sands and had all pow- er by virtue of ticket being in his name. Defendant exploited advantage. Plaintiff held belief United States tax burden was no more than 30% should he have winning ticket. Logically implausible that plaintiff would agree to share 50% of winnings while at same time running risk of violating United States tax law and incarceration. Such arrangement lacked any ben- efi t to plaintiff and clearly dis- advantageous. Plaintiff did not enter into 50/50 agreement ei- ther by verbal assent or by con- duct. Plaintiff rejected request for 50/50 split and reiterated he would be prepared to share 80/20. Defendant grunted in The Art of Using Expert Evidence Conflicts of Interest: Principles for the Legal Profession The Law of Restitution, Looseleaf Edition Supreme Court of Canada Manual: Practice and Advocacy canadalawbook.ca CA082 For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com Eugene Meehan, Q.C., Jeffrey Beedell and Marie-France Major Peter D. Maddaugh and John D. McCamus M. Deborah MacNair Robert B. White, Q.C.

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