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PAGE 14 File No. 02-CV-237496) 189 A.C.W.S. (3d) 1147 (15 pp.). Professions PHYSICIANS AND SURGEONS Claim for damages was not barred by s. 38.1 of Independent Health Facilities Act (Ont.) Motions judge dismissed On- tario defendants' motion to dismiss action and strike claim of plaintiffs on grounds that it disclosed no cause of action. Motions judge found that claim for damages was not barred by s. 38.1 of Independent Health Facilities Act (Ont.), nor was it re-litigation of issues that were before HSARB and action was not abuse of process nor would it be misuse of court's proce- dure. Motions judge found that claim was sufficient in detail and documentation pleaded with respect to let action move ahead with respect to tortious claim of conspiracy, interfer- ence with economic relations, abuse of process and abuse of public office. No reason to doubt correctness of decision and appeal did not involve matters of public importance that leave should be granted. Leave to appeal refused. Lipsitz v. Ontario (June 15, 2010, Ont. S.C.J. (Div. Ct.), Greer J., File No. 529/09; 517/09) Leave to appeal from 181 A.C.W.S. (3d) 604 was re- fused. 189 A.C.W.S. (3d) 1180 (10 pp.). FEDERAL COURT Courts JURISDICTION Plaintiff 's dispute was not directly with Canada Motion by defendant to strike out statement of claim. In 1999, plaintiff sponsored R., his then wife and her two sons as per- manent residents of Canada. Plaintiff signed sponsorship agreement with R.. In 2000, R. and sons left plaintiff and began to receive social assis- tance benefits from province of British Columbia. Plaintiff was unaware of these payments or that province held him liable as their sponsor to repay them. In 2008 and 2009, province gar- nisheed funds standing to his credit in his tax account with Revenue Canada. Relief sought by plaintiff in action was decla- ration that he had no effective debt owed in connection with undertaking he gave in 1999 as there was no agreement be- tween him and government of Canada to repay payments made by British Columbia. Plaintiff contended that prov- ince of British Columbia had improperly garnisheed his tax account with revenue Canada. Motion granted. Plaintiff's dispute was not directly with Canada and therefore dispute he had did not fall within juris- diction of Federal Court. Plain- tiff should be seeking declara- tion and repayment of funds allegedly taken illegally against provincial authorities in Brit- ish Columbia Superior Court, either in action already com- menced or new action. Simon v. Canada (June 8, 2010, F.C., Zinn J., File No. T-639- 10) 189 A.C.W.S. (3d) 1135 (6 pp.). Immigration PERSON IN NEED OF PROTECTION Board's conclusion supporting availability of state protection was unreasonable Failure of Immigration and Refugee Board to consider to- tality of evidence in respect of state protection constituted re- viewable error. Applicant was citizen of both Saint Vincent and Grenadines and Trinidad and Tobago. In Trinidad appli- cant had relationship with abu- sive boyfriend. Applicant did not report beatings to authori- ties because boyfriend was for- mer police officer in Trinidad. Applicant travelled to Saint Vincent but boyfriend contin- ued to harass applicant there. Applicant came to Canada and claimed refugee protection. Im- migration and Refugee Board rejected refugee claim. Noting that applicant did not make single report to police board concluded that applicant failed to establish absence of state protection. Applicant brought application for judicial review of decision of board. Applica- tion allowed. Board's conclu- sion supporting availability of state protection was unreason- able. Board did not conduct full assessment of evidence, including applicant's testimony and totality of documentary evidence on file. Applicant tes- tified that during course of beating at hands of boyfriend police officers came but refused to intervene after finding out that boyfriend was former po- lice officer. Applicant further testified about request for po- lice protection of cousin also involved in violent relationship that went unheeded. Board ig- nored documentary evidence in form of current reports de- tailing ineffectiveness of police protection in domestic violence cases in Saint Vincent and Trin- idad. Board's decision set aside and matter referred back to dif- ferently constituted panel for redetermination. Bacchus v. Canada (Minister of Citizenship and Immigration) (June 10, 2010, F.C., Boivin J., File No. IMM-5559-09) 189 A.C.W.S. (3d) 1129 (12 pp.). Intellectual Property Industrial And TRADEMARKS United States Trademark Trial and Appeal Board decision was irrelevant to determination of factual issues in Canadian proceedings Determination of whether affi- davit filed by applicant in sup- port of its application appeal- ing decision of Trade-marks Opposition Board should be struck. Respondent had filed two trade-mark applications in association with garage door CASELAW openers. Applicant filed state- ment of opposition against each application. Respondent served counter statement with respect to each opposition. Trade-mark Opposition Board rejected both of applicant's op- positions pursuant to s. 38(8) of Trade-marks Act (Can.). Ap- plicant brought application to appeal board's decision. In sup- port of its applications appli- cant served and filed affidavit of N., who was partner in law firm for applicant in respect of its opposition to respondent's applications for registration of trade-marks in United States trade-mark proceedings. N.'s affidavit introduced into evi- dence copy of opposition deci- sion rendered by United States Trade-Mark Trial and Appeal Board ("TTAB") involving respondent's trade-mark. N. attested that applicant was successful in its opposition to respondent's trade-mark in United States and that respon- dent did not appeal decision. TTAB decision was rendered subsequent to evidentiary stage of proceedings before Oppo- sition Board and was not ad- duced as part of applicant's evi- dence in Canadian opposition proceedings. However, copy of TTAB decision was annexed to applicant's written argument to Opposition Board. Order issued striking affidavit in its entirety. TTAB decision clear- ly irrelevant to determination of factual issues in Canadian trade-mark proceedings. Fact that respondent did not appeal decision in United States pro- ceedings had no bearing on is- sues raised in this application. It would be inappropriate and in violation of respondent's private legal and business affairs to re- quire respondent to adduce evi- dence to explain why no appeal was taken. Summary of previ- ous testimony by deponent was inappropriate evidence due to fact that accuracy of testimony may be compromised. As well, admitting excerpt of testimony into evidence bore risk of tak- ing evidence out of context. Chamberlain Group, Inc. v. Lynx Industries Inc. (June 7, 2010, F.C., Lafreniere Prothono- tary, File No. T-2141-09) 189 A.C.W.S. (3d) 1137 (9 pp.). Taxation INCOME TAX In absence of extraordinary circumstances, waiver of withholding tax, penalties, and interest arrears on over-contribution to RRSP not justified Through erroneous advice of federal employer applicant made over-contribution to R.R.S.P.. Applicant relied on investment advisor to file form with CRA requesting waiver of withholding tax otherwise ap- plicable to withdrawal of excess contribution. While preparing tax return in respect of 2004 taxation year applicant became aware of fact that CRA had not received form. Applicant filed second form with CRA requesting waiver. CRA sent letter to applicant calling atten- tion to non-filing of required www.lawtimesnews.com T1-OVP returns reporting tax on excess contributions. Ap- plicant filed required returns and at same time requested for discretionary waiver of pen- alties and interest arrears on over-contribution. Minister's delegate declined request for waiver. Applicant brought ap- plication for judicial review of delegate's decision. Application dismissed. Delegate's decision was not unreasonable. Appli- cant failed to justify inability to satisfy tax obligation. Timely filing of T1-OVP returns and payment of withholding tax, penalties and interest were within applicant's control. Ap- plicant did not identify extenu- ating circumstances preventing applicant from doing so. Reli- ance by applicant on advisor was no excuse. Taxpayers like applicant remained responsible for actions of persons appoint- ed to take care of financial mat- ters of taxpayers. Fleet v. Canada (Attorney Gener- al) (June 7, 2010, F.C., Cramp- ton J., File No. T-673-09) 189 A.C.W.S. (3d) 1190 (13 pp.). FEDERAL COURT OF APPEAL Appeal Respondent STAY PENDING APPEAL Motion seeking stay of judgment pending appeal was allowed company com- menced action against appel- lant company for copyright infringement and passing off in relation to respondent's busi- ness. Respondent was partly successful. Judgment awarded to respondent solicitor-and- client costs among other relief. Judgment was appealed by ap- pellants and cross appealed by respondent. Respondent claimed $265,000 as solicitor- and-client costs. Appellants brought motion seeking stay of judgment pending disposi- tion of appeal and cross appeal. Motion allowed. Appellants satisfied test for grant of stay. Respondent conceded existence of serious issue on appeal. Evi- dence supported inference that payment of costs would threat- en ability of appellant company to continue business. Judge ac- cepted financial difficulty as possible basis for irreparable harm. Finally balance of con- venience favoured appellants. In view of respondent's failure to provide current information about financial position there was substantial risk of non- recovery of costs paid if appeal succeeded. Stay granted. Cheung v. Target Event Produc- tion Ltd. (June 4, 2010, F.C.A., Sharlow J.A., File No. A-50- 10) 189 A.C.W.S. (3d) 1142 (11 pp.). Taxation INCOME TAX Taxpayer was entitled to deduct support payments paid to former common law spouse Appeal from judgment of Tax September 7, 2010 • Law timeS Court of Canada finding that appellant was not able to de- duct support payments that he paid in 2005 to his former common law spouse. Appellant had cohabited with R. from April 1, 1989 to July 1, 1990. During that time they had son. Parties signed written separa- tion agreement dated July 1, 1990, which provided that if parties by mutual consent co- habited as man and wife agree- ment would remain in force unless they mutually agreed to terminate agreement. In August 1993, parties attempted recon- ciliation and resumed cohabi- tation. Appellant did not make support payments during that time. In February 1995, recon- ciliation ended and parties sep- arated permanently. After that time appellant made and R. accepted support payments in amounts specified in separation agreement. Tax Court deter- mined that support payments by appellant in 2005 were not receivable under written agree- ment and therefore could not be deducted under s. 56.1(4) of Income Tax Act (Can.). Tax Court relied upon general common law rule that recon- ciliation will terminate prior separation agreement between parties. Issue whether appel- lant's failure to make support payments during reconciliation period from 1993 to 1995 ter- minated separation agreement such that later payments made were not receivable under writ- ten agreement within meaning of s. 56.1(4) of Act. Appeal al- lowed. Common law rule not absolute and has been qualified by case law. Taxpayer in appel- lant's circumstances need not show clear and specific intent that agreement was continuing and binding, which was burden imposed by Tax Court. Instead taxpayer need only show that parties continued to act un- der earlier written agreement without material variation such that agreement still described their relationship. When that is shown support payments re- ceived by payee are not receiv- able under colourable, fraudu- lent or gratuitous arrangement. Rather they were receivable un- der earlier written agreement that still described parties' rela- tionship. Broad v. Canada (June 2, 2010, F.C.A., Letourneau, Pelle- tier and Stratas JJ.A., File No. A-624-08) 189 A.C.W.S. (3d) 1189 (9 pp.). ONTARIO CRIMINAL CASES Charter Of Rights APPLICATION Charter could not apply retrospectively to non-disclosure at time of 1972 trial Accused charged with non-cap- ital murder. Accused convicted in 1972 trial. In 2009, accused's conviction set aside and new trial ordered on basis of fresh evidence. Fresh evidence con-