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PAGE 16 CaseLawLaw SUPREME COURT OF CANADA Constitutional Law CHARTER OF RIGHTS Subsections 25(8) and 25(9) of Child and Family Services Act (Man.) are constitutional C. is devout Jehovah's Witness suffering from Crohn's disease. She signed advance medical di- rective containing written in- structions not to be given blood under any circumstances. She was 14 years, 10 months old when admitted to hospital with life-threatening gastrointestinal bleeding. When she refused to consent to receipt of blood, Di- rector of Child and Family Ser- vices apprehended her as child in need of protection and sought treatment order from court un- der s. 25(8) of Child and Fam- ily Services Act (Man.). Section 25(9) creates presumption that best interests of child 16 or over most effectively promoted by al- lowing child's views to be deter- minative. No such presumption for children under age of 16. Applications judge held that be- cause C. under 16, no legislated restrictions on court's ability to order medical treatment in her best interests. Applications judge ordered that C. receive blood transfusions. C. and her parents appealed, arguing that legislative scheme infringed C.'s rights un- der ss. 2(a), 7 and 15 of Canadian Charter of Rights and Freedoms. Court of Appeal upheld consti- tutional validity of impugned provisions and treatment or- der. Further appeal to Supreme Court of Canada dismissed. Section 25(8) and (9) of Act are constitutional. Statutory scheme strikes constitutional balance between individual's fundamen- tal right to autonomous decision making in connection with her body and law's attempts to pro- tect vulnerable children from harm. Under s. 25(8), child's views become increasingly de- terminative depending on her maturity. The more serious the nature of the decision and the more severe its potential impact on life or health, the greater the degree of scrutiny required. Un- der s. 25(8), children under 16 have right to demonstrate ma- ture medical decisional capacity. "Best interests" must be inter- preted so as to reflect and respect mature adolescent's developing autonomy. When properly in- terpreted, legislative scheme cre- ated by s. 25(8) and (9) of Act does not infringe ss. 7, 15 or 2(a) of Charter. It is neither arbitrary, discriminatory, nor violative of religious freedom. Manitoba (Director of Child and Family Services) v. C. (A.) (June 26, 2009, S.C.C., McLach- lin C.J.C., LeBel, Deschamps, Abella, Charron, Rothstein JJ. and dissenting - Binnie J., File No. 31955) Appeal from 282 D.L.R. (4th) 635, 157 A.C.W.S. (3d) 469 dismissed. Order No. 009/180/053 (130 pp.). FEDERAL COURT OF APPEAL Administrative Law FREEDOM OF INFORMATION Prime Minister not included within scope of phrase "officer of a government institution" This was appeal from judge's de- cision ordering certain records under control of Royal Canadi- an Mounted Police ("R.C.M.P.") and Privy Council Office ("PCO") that contained Prime Minister's agenda were subject to disclosure under Access to Information Act (Can.) ("AIA"). Appeal allowed. R.C.M.P. and PCO were government institu- tions as defined in AIA and re- cords under their control were subject to disclosure, subject to certain statutory exceptions. Section 19(1) of AIA precluded disclosure of "personal informa- tion" as defined by s. 3 of Pri- vacy Act (Can.) ("PA"). Records could not be disclosed unless exception in paragraph (j) ap- plied. Records must be disclosed if Prime Minister was "officer of government institution" with- in PA. Prime Minister's office was government organization that was separate from PCO. It would be inconsistent the inten- tion of Parliament to interpret PA in way that would include Prime Minister within scope of phrase "officer of a government institution" as used in paragraph (j) of definition of "personal in- formation" in s. 3 of PA. Canada (Information Commis- sioner) v. Canada (Minister of National Defence) (May 29, 2009, F.C.A., Richard C.J., Sex- ton and Sharlow JJ.A., File No. A-413-08; A-379-08) Appeal from 168 A.C.W.S. (3d) 453 was allowed in part. Order No. 009/166/246 (8 pp.). Intellectual Property Industrial And PATENTS Trial judge's finding of patent infringement upheld on appeal ADIR and Servier commenced September 14, 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: it 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) 841-6472, 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. action against Apotex alleging that infringed ADIR's 196 patent for ACE inhibitor perin- dopril, which Servier sold under trade-mark COVERSYL, used in treatment of hypertension and cardiac insufficiency. Since 2006, generic manufacturer Apotex had manufactured per- indopril products in Canada and exported them internationally to affiliates and others. Apotex de- fended action on several fronts: that 196 patent was invalid be- cause it was not inventive in light of prior disclosures and common general knowledge; ADIR was not first inventor; patent lacked utility; and there was no basis for sound prediction on Ca- nadian filing date. By counter- claim, Apotex claimed damages under s. 36 of Competition Act (Can.), on basis that ADIR ob- tained 196 patent in breach of s. 45 of Act. Trial judge concluded that claims 1, 2, 3 and 5 of 196 patent were valid and had been infringed by Apotex and dis- missed Apotex's counterclaim. No issue was taken with respect to trial judge's determination on infringement or remedies. Apo- tex's allegations of error largely related to factual determinations made by trial judge for which Apotex had not demonstrated palpable and overriding error. Further, to extent that Apotex's arguments related to questions of law, trial judge did not err as alleged. Laboratoires Servier v. Apotex Inc. (June 30, 2009, F.C.A., Linden, Evans and Layden-Stevenson JJ.A., File No. A-393-08) Appeal from 168 A.C.W.S. (3d) 1064, 67 C.P.R. (4th) 241 dismissed. Order No. 009/190/018 (56 pp.). Judge erred in conclusion on issue of abuse of process Order prohibited Minister from issuing notice of compliance to appellant in respect of medicine until expiry of patent. Judge agreed with respondent's sub- mission that because validity of patent was determined by Fed- eral Court in Novopharm trial and by Federal Court of Appeal in Novopharm appeal, appel- lant's attempt to contest valid- ity of patent now was attempt to re-litigate issues litigated in Novopharm trial and appeal. Appeal was allowed. Judge erred in conclusion on issue of abuse of process. Case law did not support conclusion that second person could not send NOA to patentee and respond to paten- tee's application for prohibition on grounds similar to those ar- gues by different generic in other proceedings with same patentee without showing better evidence or more appropriate legal argu- www.lawtimesnews.com ment. Judge did not conduct enquiry with respect to issues of claim construction, anticipation and obviousness distinct from analysis of abuse of process. Judge did not conduct parallel enquiry but rather conducted enquiry that co-mingled evi- dence and findings made in No- vopharm trial. Layden-Steven- son J.A., dissenting, and would have dismissed appeal. Apotex Inc. v. Janssen-Ortho Inc. (June 22, 2009, F.C.A., Na- don, Trudel JJ.A. and dissent- ing - Layden-Stevenson J.A., File No. A-373-08) Order No. 009/187/178 (46 pp.). Labour Relations BARGAINING UNIT No error in allocation of three positions to bargaining unit Public Service Labour Relations Board did not exceed its juris- diction when, on application by Canadian Federal Pilots Associa- tion, it allocated three positions in federal public service to bar- gaining unit comprising Aircraft Operations ("AO") occupational group. Members' duties were similar to those of incumbents of disputed positions. Board did not base its decision on incorrect interpretation of provision in Public Service Labour Relations Act (Can.), which was review- able on standard of correctness, nor on unreasonable interpreta- tion of relevant provision. Court ought not to interfere in this case. P.S.A.C. v. Canadian Federal Pi- lots Assn. (July 2, 2009, F.C.A., Evans, Pelletier and Layden- Stevenson JJ.A., File No. A-375- 08; A-383-08) Application for judicial review from 94 C.L.A.S. 153 was dismissed. Order No. 009/190/017 (39 pp.). Taxation INCOME TAX No error in judge's conclusions that series of transactions amounted to tax avoidance Appeal by CHI, member of group of companies LG, of Tax Court decision upholding assess- ment by application of general anti-avoidance rule ("GAAR") at s. 245(2) of Income Tax Act (Can.). Disputed assess- ment arose from 1996 redemp- tion of preferred shares in CHI held by related non-resident corporation. CHI considered shares' paid-up capital ("PUC") equal to proceeds paid and no tax withheld from proceeds. Minister of National Revenue ("MNR") applied s. 245(2) of Act and determined shares' PUC to be $87,487.834 less than proceeds, giving rise to deemed dividend of $58,325,223 sub- ject to unpaid 15% withhold- ing under s. 212(2) of Act. 1996 redemption preceded by series ("First Series") of transactions commencing in 1991 which in- cluded acquisition of additional shares in corporation H by an- other member of LG followed by intra-group loss consolida- tion transactions to enable CHI to realize accrued capital loss on H shares owned by other mem- bers, and to carry back capital loss to offset capital gain real- ized by CHI in separate sale of hotel property. Second series of amalgamations and transactions amongst members of LH com- menced in 1994 ("Second Se- ries") with objective of removing proceeds of prior hotel property sale from Canada, resulting in re- demption of shares giving rise to disputed assessment. At first ap- peal, judge held that GAAR as- sessment unsustainable under s. 245(2) unless tax benefit flowed from same series of transactions including avoidance transaction pursuant to s. 248(10) of Act. At issue was degree of closeness or connection that must be shown between two series of transac- tions under s. 248(10). Appeal dismissed. If prior series was a motivating factor with respect to completion of subsequent transaction, the transaction can be said to have been completed in contemplation of the series, and a direct causal relationship between series and transaction need not be established. Pres- ervation of PUC in first series was unassailably a motivating factor in shares' redemption in second series, particularly given temporal proximity. No error in judge's conclusions that first se- ries amounted to tax avoidance transaction and that tax benefit arose. Judge reasonably deter- mined that purpose of require- ment for elimination of PUC on intercorporate shareholdings upon amalgamation is to avoid duplicative additions to PUC. Judge's conclusion that transac- tions resulted in circumvention of that requirement in an abu- sive manner under s. 245(4) of Act was reasonable. Copthorne Holdings Ltd. v. Cana- da (May 21, 2009, F.C.A., Des- jardins, Evans and Ryer JJ.A., File No. A-416-07) Order No. 009/166/247 (39 pp.). FEDERAL COURT Citizenship QUALIFICATIONS Respondents' extensive absences amounted to structural mode of living abroad

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