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Law timeS • September 14, 2009 Minister's appeal of finding that respondent qualified for citizen- ship despite being present in Canada for only 405 days in prior four years, as compared to ordinarily required 1,095 days of residence under s. 5(1) of Citizenship Act (Can.). Requi- site factors erroneously analyzed. Judge failed to carefully examine all circumstances surrounding respondent's physical absences. Judge erred in concluding ab- sences were evenly spread out, when in fact "dramatically in- tensified" in two years before ap- plication. Judge erred in holding that respondent was fully em- ployed in Canada, when in fact employed there only until Janu- ary 2005 and disregarded fact that respondent thereafter em- ployed full-time in employer's Netherlands operations, at time when prolonged absences from Canada were increasing dramat- ically. Respondents' extensive absences amounted to structural mode of living abroad, not nor- mal or customary residence in Canada. Canada (Minister of Citizenship and Immigration) v. Camorlin- ga-Posch (June 11, 2009, F.C., Shore J., File No. T-1463-08) Order No. 009/176/067 (28 pp.). Immigration EXCLUSION AND EXPULSION Stay of deportation granted Application for stay of deporta- tion by C.G. and S.F., cousins and citizens of Guyana, aged 18 and 25 respectively, who entered Canada on false St. Lucia pass- ports May 2009. Applicants de- tained after separate interviews at airports. Some dispute as to whether applicants expressly claimed protection at interview before officer recommended ex- clusion, but clear that applicants' counsel identified fear and risk of return and requested pre-re- moval risk assessment ("PRRA") immediately thereafter. Stay granted. Serious issues arising, including: (1) whether refusal to offer applicants a PRRA applica- tion violated s. 166 of Immigra- tion and Refugee Protection Act (Can.); (2) whether expulsion of C.G. reasonable given fear of re- turn arising from alleged sexual abuse; and (3) whether depor- tation scheduled precipitously, with result that requested PRRA applications denied. Failure to assess applicants' risks of return amounting to irreparable harm arose from failure to have ap- plicants' risk of return assessed. Balance of convenience favour- ing applicants. Griffith v. Canada (Minister of Citizenship and Immigration) (May 28, 2009, F.C., Lemieux J., File No. IMM-2412-09; IMM-2451-09) Order No. 009/181/161 (9 pp.). Intellectual Property Industrial And COPYRIGHT Respondent contributed sufficient originality and expression to claim authorship of book Registration of copyright iden- tified applicant and respondent as owners and authors of book. Applicant argued agreement re- flected parties' intention to cre- ate book with applicant as au- thor and respondent as editor. Respondent claimed there was second oral agreement dealing with writing of book with par- ties as joint authors. Application to expunge certificate of registra- tion of copyright was dismissed. Respondent was credible. There was second agreement under which parties agree to jointly au- thor book. Respondent contrib- uted sufficient originality and expression to claim authorship of book. There was collabora- tion that contributed to unitary whole and parties intended con- tributions to be joined in fur- therance of common design. Neugebauer v. Labieniec (June 25, 2009, F.C., Simpson J., File No. T-64-08) Order No. 009/189/026 (20 pp.). PATENTS Summary judgment inappropriate where dispute based on two different interpretations of s. 8 of NOC Regulations Motion by defendants PC and PCI for summary judgment dis- missing plaintiff AI's action for damages under s. 8 of Patented Medicines (Notice of Com- pliance) Regulations (Can.) ("NOC Regulations"). Action alleged that defendants' unsuc- cessful August 1995 application for prohibition related to AI's olefin process delayed issuance of Notice of Compliance to AI for its product Apofluconazole until October 1998 after AI filed satisfactory Notifiable Change Submission, with result that damages suffered. PC and PCI denying any causal link between its prohibition application and any damages suffered. Any dam- ages instead, in PC and PCI's submission, suffered due to AI's failure to provide required infor- mation to Minister until filing of NCS in October 1998. Motion dismissed. Dispute based on two different interpretations of s. 8 of NOC Regulations, i.e. question of law as to meaning to be as- cribed to phrase "in the absence of the Regulations" and to what factors delay must be attributed. Where question of law raised on facts in relation to s. 8, summary judgment inappropriate. Apotex Inc. v. Pfizer Canada Inc. (June 12, 2009, F.C., Kelen J., File No. T-1235-02) Order No. 009/176/058 (20 pp.). Transfer Of Offenders GENERAL Denial of transfer from medium to minimum security institution upheld on review Accused applied for order to overturn decision of Correction- al Service of Canada ("CSC") which denied him transfer from medium to minimum security institution. Accused was per- son of interest in outstanding murder investigation. Accused argued that "CSC's" reliance on information obtained from Royal Canadian Mounted Police (R.C.M.P.) was unlawful. Ap- plication dismissed. Concerns of R.C.M.P. that accused was person of interest in murder fell within factors that "CSC" was required to consider, including behaviour while under sentence, criminal history, potential for violence, and continued involve- ment in crime. "CSC" had duty CaSElaW to include information about inmates that was relevant to de- cisions taken in correctional set- ting. Persons charged in murder had yet to come to trial. Once evidence was in at trial and all that remained was vague sug- gestion that accused was person of interest, "CSC" would give information very little weight in assessing accused's security classification. "CSC" did not fetter its discretion or delegate decision-making responsibility to R.C.M.P.. Byard v. Canada (Attorney Gener- al) (June 22, 2009, F.C., O'Reilly J., File No. T-1227-08) Order No. 009/187/183 (8 pp.). TAX COURT OF CANADA Taxation INCOME TAX Profit from fishing activities not exempted from taxation Appellant R.B., an Indian un- der s. 2 of Indian Act (Can.) ("IA"), appealed 2001 and 2002 tax reassessments, taking posi- tion and he hit the side of her face. Judge found that even if the ac- cused's version was true his use of force was more than was nec- essary to defend himself. Appeal dismissed. Judge did not ignore evidence that undermined the victim's credibility. He consid- ered the impact of the voice mail messages and the two letters she wrote to the Crown Attorney to reach his conclusions. There was ample evidentiary foundation for the judge to make his findings of fact. Accused failed to show that the verdict was unreasonable. R. v. Wallace (July 3, 2009, Ont. S.C.J., Pattillo J., File No. 212/07) Order No. 009/187/040 (8 pp.). Disclosure GENERAL Requested records irrelevant to whether intoxilyzer and auxiliary equipment functioned properly when tests taken Application by the accused, who was charged with impaired driv- ing and driving with an excess blood alcohol level, that profit derived from fishing business was "personal property situated on a reserve" exempt from taxation pursuant to s. 87(1) of IA and s. 81(1)(a) of Income Tax Act (Can.). Ap- peals dismissed. Connecting fac- tors test considered and applied. Fishing activities occurred in "commercial mainstream" with result that profit not exempted from taxation, as opposed to be- ing "integral to the life of a Re- serve". Fish caught off-Reserve; most working time during fish- ing season spent off-Reserve; entire catch sold to co-operative located off-Reserve and who transported catch off-Reserve as soon as possible, and; no fish sold on-Reserve and catch spent very little time there. Historical evidence indicating that com- mercial fishing not commencing until 1880s, after Reserve's for- mation, and therefore not a "tra- ditional way of life" for purpose of determining whether proper- ty is "property of an Indian qua Indian". Ballantyne v. Canada (June 16, 2009, T.C.C., Webb J., File No. 2005-830(IT)G) Order No. 009/176/016 (40 pp.). ONTARIO CRIMINAL CASES Assault COMMON ASSAULT Judge did not ignore evidence undermining victim's credibility Appeal by the accused from his conviction for spousal assault. Trial judge believed the victim's account that during an argu- ment the accused grabbed her neck and hit her head against the wall two or three times. He rejected the accused's version in which he claimed he tried to avoid a confrontation with his wife after she left several an- tagonistic voice mail messages at his work. When he tried to leave the apartment she pushed him to prevent him from leaving www.lawtimesnews.com for addi- tional disclosure. He had been provided with test records, the certificate of the qualified tech- nician, the alcohol influence report, the certificate of analysis of the alcohol standard, the alco- hol standard log, the intoxilyzer maintenance and tracking log, the certificate of annual main- tenance of the intoxilyzer and the alcotest maintenance log. He sought the simulator certification records, the intoxilyzer usage logs and the intoxilyzer calibration records. Application dismissed. Requested records were clearly irrelevant to the issue of whether the intoxilyzer and its auxiliary equipment functioned properly when the tests were taken. R. v. Balfour (June 9, 2009, Ont. C.J., Lane J.) Order No. 009/187/038 (6 pp.). Motor Vehicles PROVINCIAL REGULATION There was evidence that accused failed to assist in examination of commercial vehicle Application by the accused to dismiss the charge against him by way of a directed verdict of not guilty. Accused was charged with failing to assist in the ex- amination of a commercial ve- hicle, contrary to s. 216.1(1) of the Highway Traffic Act (Ont.). Transportation enforcement of- ficer activated truck scales and the flashing sign that directed passing trucks to go to the scales. Accused pulled his tractor-trailer off the highway and faced the sign. He remained there for several minutes, re-entered the highway and entered the in- spection station. Application dismissed. Provision required a driver to assist in the examina- tion. There was evidence that the accused did not do so because he failed to move his tractor-trailer into the station in a direct and timely manner, in response to the flashing sign directions that faced him. Prosecution adduced evidence of the actus reus of the subject offence, so as to establish a case against the accused. Rea- sonable jury could return guilty verdict based on this evidence. R. v. Martin (June 19, 2009, PAGE 17 Ont. C.J., Dechert J.P., File No. 1260-88080303) Order No. 009/187/033 (11 pp.). ONTARIO CIVIL CASES Civil Procedure CLASS PROCEEDINGS Common issue determinative of liability not established Application for certification of class proceeding brought on behalf of current and former front-line service workers in re- tail branches of defendant bank CIBC. Plaintiff asserting causes of action in breach of contract and unjust enrichment claim- ing compensation for unpaid "off-the-clock" overtime wages. Plaintiff alleging: (1) that CIBC's overtime policy illegal in requir- ing prior approval for payment of overtime, except in extenuating circumstances and providing a paid-time-off compensation op- tion; and (2) CIBC failed to pay employees entitled to overtime as required by Canada Labour Code where overtime work re- quired or permitted, whether or not pre-authorized. Application dismissed on basis that common issues requirement not satisfied. Causes of action and identifiable class criteria satisfied. No com- mon issues to class proven. Plain and obvious that policy's pre- approval requirement is not un- lawful. Paid-time-off compen- sation option under policy not in violation of s. 174 of Code, since policy amounts to a more favourable benefit with meaning of and permitted by s. 168(1), on basis that employees offered a choice. In absence of any is- sue as to policy's legality, not a common issue determinative of any liability. While CIBC's duty to keep records applied in com- mon to all employees, plaintiff asserted no common flaw in record keeping, with result that accuracy of records is an indi- vidual issue. Statutory and com- mon law duty owed in common to all employees to compensate for overtime hours worked not a common issue justifying cer- tification, since its resolution in favour of the plaintiff not estab- lishing liability, and in any event admitted. Any breach of duty determinable only on individual bases by examination of indi- vidual claims, unless systemic policy, practice or experience of unpaid overtime at CIBC dem- onstrated. Expert evidence relied upon not helpful in establishing systemic policy, practice or ex- perience of unpaid overtime at CIBC. No basis for assessing any class-wide liability in damages, and plaintiff unable to satisfy s. 24(1)(b) of Class Proceedings Act, 1992 (Ont.), to as to allow assessment in aggregate. Had common issues been proven, preferable practice requirement satisfied, even where individual assessment of damages, poten- tially via individual hearings, would be required. Representa- tive plaintiff and litigation plan criteria satisfied. Fresco v. Canadian Imperial Bank of Commerce (June 18, 2009, Ont. S.C.J., Lax J., File No. 07-CV-334113CP) Order No. 009/173/028 (38 pp.).