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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Civil Procedure PLEADINGS Statement of claim cannot simply assert that public officials knowingly abused their legal powers without providing material facts capable of supporting assertion Appeal from decision of federal court granting Crown's motion to strike appellant's statement of claim as disclosing no cause of action within jurisdiction of court. Appellant had made claim for damages based on allegation that employees of Crown responsible for appel- lant's detention pending depor- tation knew they had no legal power to detain him because he could not lawfully be re- moved from Canada. If appel- lant were removed to Malaysia, his country of nationality he would be liable to be pros- ecuted for off ence of culpable homicide for which he would be executed if found guilty. Following positive PRRA de- cision, appellant was released from detention after Malaysian authorities informed Govern- ment of Canada July 29, 2009, that they refused its request for assurance that death penalty would not be imposed if ap- pellant were convicted. Appeal dismissed. Statement of claim cannot simply assert that pub- lic offi cials knowingly abused their legal powers without pro- viding material facts capable of supporting assertion. Appel- lant's statement of claim failed to state facts necessary to sup- port assertion, rather it stated at length background to litiga- tion. Th ere was nothing in that history from which essential el- ement of cause of action could reasonably be inferred, namely that offi cials responsible for ap- pellant's detention knew before July 29, 2009, that he could not be lawfully deported to Canada. Liew v. Canada (June 14, 2010, F.C.A., Evans, Pelletier and Stratas JJ.A., File No. A-272- 09) 190 A.C.W.S. (3d) 226 (5 pp.) FEDERAL COURT Immigration REFUGEE STATUS Applicant failed to establish that negative credibility finding was per- verse, capricious or made without regard for evidence Application for judicial review of denial of refugee claim. Ap- plicant was citizen of Syria who claimed fear of persecu- tion there as homosexual male. Applicant alleged that he had been involved with man in Syria and after they were dis- covered several men showed up at his house to attack him. Applicant escaped to Canada and contended that he came here in order to live openly gay life. Applicant had had no ho- mosexual relationships, casual or otherwise since his arrival in Canada and did not frequent gay establishments. Appli- cant alleged that failure to live openly gay lifestyle in Canada was due to his inability to speak English. Applicant had no contact with former partner in Syria. Board did not believe he was gay and concluded that applicant lacked credibility. Application dismissed. Burden was on applicant to establish that negative credibility fi nd- ing was perverse, capricious or made without regard for evi- dence. Applicant failed to es- tablish this. Board was entitled to come to its own conclusion with respect to applicant's cred- ibility. Houshan v. Canada (Minister of Citizenship and Immigra- tion) (June 15, 2010, F.C., O'Keefe J., File No. IMM- 4619-09) 190 A.C.W.S. (3d) 239 (12 pp.). Intellectual Property Industrial And TRADEMARKS Use relied on to support registrability was not "use in Canada" pursuant to s. 4 of Trademarks Act (Can.) Parties co-operated in market- ing and sale of valves manu- factured in China for period of time. Relationship termi- nated. Plaintiff s brought ac- tion for expungement of trade- mark, declaration of breaches of s. 7(a) of Trade-marks Act (Can.), and for injurious false- hoods and slander of owner- ship of trade-mark. Mark was to be expunged. Ownership of mark was owned jointly by parties. Neither party had ex- clusive right to registration of mark in their name. Neither side acknowledged joint own- ership and were not prepared to share ownership. Use relied on to support registrability was not "use in Canada" pursuant to s. 4 of Act. Misrepresenta- tion was material. Mark had not acquired element of dis- sepTember 13, 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 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: tinctiveness. Th ere was mate- rial omission. Court did not have jurisdiction to substitute one registrant for another. JAG Flocomponents N.A. v. Archmetal Industries Corp. (June 10, 2010, F.C., Phelan J., File No. T-1354-06) 190 A.C.W.S. (3d) 247 (38 pp.). TAX COURT OF CANADA Taxation INCOME TAX Assumption of reforestation was part of capital transaction Appellant sold assets of two timber mill divisions to S.. Part of agreement in both sales was assumption by appellant of reforestation and silvicul- ture liabilities. Respondent as- sessed appellant by including in calculation of proceeds of disposition of timber resource properties amount of estimated silviculture liability. Appeal was allowed on basis that appellant received proceeds as disposition on sales amount equal to cur- rent silviculture liability plus 20% of long-term silviculture liability. Fair approach was to include in proceeds of dispo- sition amount for assumption of reforestation liabilities. As- sumption of reforestation was part of capital transaction. Pay- ments did not have to be made in cash to be deductible. Daishowa-Marubeni Interna- tional Ltd. v. Canada (June 11, 2010, T.C.C., Miller J., File No. 2007-4121(IT)G) 190 A.C.W.S. (3d) 300 (27 pp.). ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Proposed settlement was fair and reasonable and in best interests of settlement class Action was based on allega- tions of conspiracy to engage in price-fi xing and price main- tenance in markets for high fructose corn syrup. Plaintiff s brought motion for certifi ca- tion of action for purposes of settlement and for approval of national settlement with one of defendants T.. Motion was allowed. Settlement was ap- proved. Class proceeding was preferable procedure. Repre- sentative plaintiff s would fairly and adequately represent inter- ests of class. Settlement result- ed in fair and reasonable ben- www.lawtimesnews.com earlug.indd 1 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. 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. efi t to class and signifi cantly advanced plaintiff 's prospect of success against non-settling de- fendants. Th ere was no reason why court could not certify one class for purposes of settlement with one defendant and diff er- ent class for certifi cation of ac- tion on contested basis against non-settling defendants. Th ere would be no prejudice to ADM if action was certifi ed with class that was narrower than class approved for purposes of settle- ment. Proposed settlement was fair and reasonable and in best interests of settlement class. Ali Holdco Inc. v. Archer Dan- iels Midland Co. (May 26, 2010, Ont. S.C.J., Strathy J., File No. 06-CV-309948-PD3) 190 A.C.W.S. (3d) 30 (16 pp.). Contracts BUILDING CONTRACTS Ambiguity in contract was resolved in favour of plaintiff because defendant drafted contract Defendant had contract with university for interior refur- bishing of residence. Defendant subcontracted painting work to plaintiff . Plaintiff sought pay- ment owed to it. Defendant ar- gued plaintiff did not complete all of work under base con- tract and was not contractu- ally obliged to pay plaintiff for extra work. Defendant claimed it was required to hire other painters to complete plaintiff 's work including defi ciencies. Th ere was ambiguity in con- tract with respect to scope of work. Ambiguity was resolved in favour of plaintiff because defendant drafted contract. Janitor rooms, utility rooms, new hatches in washrooms and lounges were not part of plain- tiff 's contract. Plaintiff could have fi nished all of work except for delays caused by defendant and owner. Defendant and/or university were responsible for invoices of outside fi rms hired to complete work. Defendant breached contract with plain- tiff . As plaintiff was not given notice of any default, con- tract was not brought to end. Plaintiff 's claim for caulking extra was allowed. Plaintiff was awarded full cost for removal of stickers. Plaintiff was en- titled to costs for major patch- ing. Defendant was not justi- fi ed in not allowing plaintiff to do defi ciency work. Defendant was not entitled to back charge for installation of wall plates or for removal of wall boards. Defendant was entitled to back charge for cost of garbage bin. Defendant was granted $900 compensation because plain- tiff 's lien was registered out of time. Frank & Sons Painting & Decorating Ltd. v. M2 Group (June 23, 2010, Ont. S.C.J., Lalonde J., File No. 07-CV- 37079) 190 A.C.W.S. (3d) 80 (38 pp.). Employment WRONGFUL DISMISSAL Plaintiff's misconduct in leaving work site without notice was sufficient cause for dismissal Defendant employed plaintiff for three and one-half years. Defendant dismissed plaintiff from employment without notice. Defendant claimed plaintiff 's failure to complete loads on shift culminated in termination of plaintiff 's em- ployment. Plaintiff was disci- plined on two previous occa- sions. Plaintiff brought action for wrongful dismissal. Action was dismissed. Plaintiff pro- vided no credible evidence an- other worker left early leaving loads for plaintiff to complete. Plaintiff did not avail himself of rights with respect to oc- cupational health and safety protocol. Employees were trusted to conduct themselves in accordance with apprecia- tion of potential dire fi nancial consequences that could result from failure to deliver products on time. Plaintiff 's failure to conduct himself in accordance with that trust was suffi cient in circumstances to justify im- mediate dismissal. Plaintiff 's misconduct in leaving work site without notice was suffi - cient cause for dismissal. Fact plaintiff was suspended previ- ously for similar misconduct and given warning for other misconduct confi rmed appro- priateness of decision to sum- marily dismiss plaintiff . Rockall v. Munro Concrete Products Ltd. (June 15, 2010, Ont. S.C.J., Allen J., File No. CV-08-00365492-0000) 190 A.C.W.S. (3d) 120 (12 pp.). Family Law COSTS No costs to be ordered against society on either substantive or procedural issues Respondents sought costs against society arising from protection application with re- spect to respondents' children. Order was made withdrawing protection application with no further orders on consent of all parties. Respondents' claim for costs was dismissed. Th ere were no costs to be ordered against society on either substantive or Includes a FREE digital edition! Go to: www.lawtimesnews.com

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