The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50768
PAGE 14 made on basis of 17 months' pretrial custody. Single refer- ence made by Crown to poten- tial treatment of A.B.'s pretrial custody could be considered as double-time, i.e. the equivalent of 34 months, for sentencing purposes. No reference to issue by judge. Further one day of jail term imposed. Immigration Division ("ID") found A.B. inadmissible by reason of seri- ous criminality under s. 36 of Immigration and Refugee Pro- tection Act (Can.), and issued deportation order. Immigra- tion Appeal Division ("IAD") refused to hear A.B.'s appeal, finding that it lacked jurisdic- tion under s. 64(2) of Act since judge had "clearly" imposed treated A.B.'s pretrial custody as double time with result that punishment imposed exceeded two years. A.B.'s judicial review application allowed. Pre-sen- tence custody may be part of ID and IAD's calculation in deter- mining whether applicant had, as matter of fact, been punished by term of imprisonment of at least two years under s. 64(2). IAD erred, however, in con- cluding that judge had clearly imposed a 2:1 credit on pretrial custody and imposed punish- ment of more than two years. In fact, judge was silent on issue and even Crown less than clear. Clear evidence required that judge considered something in excess of two years an appropri- ate term of imprisonment. No such evidence on record. Brown v. Canada (Minister of Public Safety and Emergency Pre- paredness) (June 23, 2009, F.C., Phelan J., File No. IMM-2455- 08) Order No. 009/189/029 (11 pp.). REFUGEE STATUS Board correct in not assessing what applicant, member of United States Air Force, might have been called upon to do in Iraq Application for judicial review of decision of Refugee Protec- tion Division of Immigration and Refugee Board dismissing claim for Convention Refugee status on basis applicant had not taken all reasonable steps to purse available state protection and that there was no persuasive evidence that applicant would be treated more harshly because he had spoken publicly to me- dia about opposition to war in Iraq. Applicant a member of United States Air Force who refused to be deployed to Iraq and fled to Canada in midst of disciplinary proceedings. Board concluded applicant still had legal avenues open to him be- fore he decided to leave United States. Applicant did not allow Article 15 application under United States Uniform Code of Military Justice to take full course, court-martial process and other legal steps up to and including certiorari to United States Supreme Court. Board having concluded applicant had not rebutted presumption of state protection, determined it was not necessary to consider paragraph 171 of UNHCR Handbook on Procedures and Criteria for Determining Refu- gee Status which provides that where the type of military ac- tion is condemned by interna- tional community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could in itself be regarded as persecution. Appli- cation dismissed. Board correct in law and reasonable in find- ings of fact. Board did not have to assess risk of persecution on scenario presented by applicant that he would receive illegal or- ders to commit illegal acts upon Iraqi civilians. Board correct in not assessing what applicant might have been called upon to do in Iraq. Repercussions of refusal to obey such orders only became relevant if finding made that United States incapable of protecting applicant. Laws of United States pertaining to de- sertion neutral and general in application. UNHCR hand- book irrelevant if there is ad- equate state protection. Landry v. Canada (Minister of Citizenship and Immigration) (June 8, 2009, F.C., Harrington J., File No. IMM-5148-08) Or- der No. 009/176/074 (12 pp.). Intellectual Property Industrial And PATENTS Pharmaceutical company granted order prohibiting issuance of notice of compliance to competitor for generic version of Viagra until expi- ration of related patent Application by pharmaceutical company for order prohibit- ing Minister of Health from issuing notice of compliance to competitor for generic ver- sion of Viagra until expiration of related patent. Pharmaceuti- cal company obtained patent in Canada in 1994 for compounds effective in treating erectile dys- function ("ED"). One such compound was Sildenafil, be- ing active ingredient in Viagra. Sildenafil inhibited chemical in body that had role in preventing blood from flowing into penis. Sildenafil had been developed in mid-1980's for treatment of cardiovascular conditions associ- ated with constriction of blood vessels. Effectiveness of sildena- fil for ED was discovered while it was being administered for angina. Pharmaceutical com- pany obtained patent in United Kingdom but it was struck out for obviousness. Application granted. Pharmaceutical com- pany established competitor's allegations of invalidity of pat- ent on basis of obviousness, lack of utility, and insufficient dis- closure were unjustified. Com- petitor was not precluded from raising issue of obviousness just because another competitor had previously raised this issue. Prior judgments were nonethe- less to be followed where ap- plicable. Test for obviousness in Canada was different from test used in United Kingdom case. Prior art did not teach sildenafil as solution for treatment of ED. Effectiveness of sildenafil in treatment of ED was discovered by accident. Leading experts had not considered sildenafil for treatment of ED and dis- covery of its effectiveness was considered to be revolutionary. CASELAW Evidence did not undermine findings in prior Canadian judgment even though test for obviousness had changed since then. Utility had been suffi- ciently established during study prior to obtaining patent. Pat- ent sufficiently disclosed inven- tion for purposes of s. 27(3) of Patent Act (Can.). Credibility of this particular allegation was undermined by fact that it was raised some 13 years after pat- ent was granted. Pfizer Canada Inc. v. Novopharm Ltd. (June 18, 2009, F.C., Kelen J., File No. T-1566-07) Order No. 009/189/034 (65 pp.). Phrase "outstanding defects" in Rule 30(3) of Patent Rules (Can.) read as all outstanding defects This was application for judicial review of refusal to grant patent application. Applicant filed pat- ent application in March 1994. Examination division examined patent application and seven examiner's reports were issued. In May 2002 patent application was rejected by eighth examin- ers report on basis that patent application was defective. Pat- ent Appeal Board concluded that none of alleged defects had been substantiated. Respondent commissioner followed board's recommendation and reversed examiner's rejection of applica- tion. Application was returned to examiner for further pros- ecution consistent with board's recommendation but no such recommendation existed. After commissioner's decision two subsequent examiner's reports and related requisitions were issued. Tenth examiner's report rejected patent application. Ap- plication granted. Phrase "out- standing defects" in Rule 30(3) of Patent Rules (Can.), must be read as all outstanding defects. Requirement that all final ac- tions detailed all outstanding defects in Rule 30(3) was not unduly onerous or contrary to spirit and intent of patent re- gime. Following board hearing commissioner was to either re- fuse patent application or grant application. Post decision re- ports and requisitions were set aside. Commissioner's decision was set aside. Commissioner was directed to made decision granting patent application pursuant to s. 27 of Patent Act (Can.) Belzberg v. Canada (Commis- sioner of Patents) (June 23, 2009, F.C., Simpson J., File No. T-248-08) Order No. 009/189/030 (18 pp.). TRADEMARKS Application for order expunging two trademarks was dismissed Application for order expung- ing two trade-marks registered by respondent's company pur- suant to s. 57 of Trade-marks Act (Can.). Applicant father's company was named Miranda Aluminum Inc., and respon- dent son's company was named Miranda Windows & Doors Inc.. Both businesses sell and install aluminum products. Re- spondent filed applications for registration of trade-mark for name Miranda and for design mark that showed name Miran- www.lawtimesnews.com da surrounded by outline that represented house with roof and chimney. Father sought to pre- vent son from using last name as trade-mark. Application dis- missed. Father's evidence did not establish prior use of name Miranda. It could not be said that son adopted name at time when public would falsely have made connection with father. There was clear distinctiveness with respect to word and design marks. Miranda Aluminum Inc. v. Miranda Windows & Doors Inc. (June 26, 2009, F.C., Simpson J., File No. T-1298-07) Order No. 009/189/025 (18 pp.). TAX COURT OF CANADA Taxation INCOME TAX Appeal from assessment was quashed Appellant's 2000 taxation year was assessed under Income Tax Act (Can.). On basis of appel- lant's T1 Adjustment Request regarding capital gain reserve Minister of National Revenue reassessed for appellant's 2000 taxation year. There was further reassessment to permit recogni- tion of capital loss for same year. No notice of objection was re- ceived by Minister with respect to two reassessments. Minister received application for relief under ss. 152(4.2) or 164(1.5) of Act. Minister issued under fairness provisions of Act notice of reassessment permitting capi- tal loss carry-forward. Appellant objected to reassessment. CRA issued notice of confirmation. Appellant filed notice of ap- peal. Respondent brought mo- tion seeking order quashing ap- peal. Motion allowed. Section 152(4.2) of Act afforded relief to individual taxpayer who became aware that he may be entitled to refund or reduction of amount payable after normal assessment period. However s. 165(1.2) ex- plicitly precluded taxpayer from objecting to assessment made under s. 152(4.2). Since appel- lant could not make valid objec- tion to reassessment he was pre- cluded from appealing same to Tax Court. In addition evidence did not disclose that conditions set out in s. 152(4) in order for Minister to be able to assess af- ter normal assessment period had been met. Kubbernus v. Canada (June 29, 2009, T.C.C., Angers J., File No. 2008-3239(IT)G) Order No. 009/190/042 (15 pp.). ONTARIO CIVIL CASES Appeal PROCEDURE All claims that were subject of dismissal had to be added together to determine total assessed amount of dismissed claim for purpose of applying s. 19(1)(a)(1.1)(c) or s. 19(1)(a)(1.1)(d) of Courts of Justice Act (Ont.) September 21, 2009 • Law timeS Motion by appellants for order quashing appeal and transfer- ring appeal back to Divisional Court. Appellant had sued for damages arising from death of infant son, alleging medical practice. Appellant father sued as personal representative of his deceased infant son for damages pursuant to Trustee Act (Ont.) ("TA"), on behalf of estate and in his personal capacity for dam- ages pursuant to Family Law Act (Ont.) ("FLA"), for deriva- tive claims. Appellant mother sued for derivative claims pur- suant to FLA. Appellant father on behalf of deceased son's es- tate claimed general damages in amount of $10,000 and special damages in amount of $10,000. Both appellants in personal ca- pacities claimed general damag- es in amount of $100,000 each pursuant to FLA. Action was dismissed January 3, 2007. Trial judge assessed damages under TA at $5,000 and under FLA at $15,000 each to mother and father for total of $35,000. Ap- pellants appealed to Divisional Court which concluded that because total amount assessed by trial judge was $35,000 it was without jurisdiction and transferred appeal to Court of Appeal. Appellants moved for order quashing appeal and trans- ferring appeal back to Divisional Court, contending that for pur- pose of determining jurisdiction claims of each separate plaintiff were to be considered separately and because amount assessed by trial judge in respect of each ap- pellant was under $25,000 ap- peal properly lay to Divisional Court. Notice of Appeal was filed February 1, 2007, prior to coming into force of amend- ments to Courts of Justice Act (Ont.) ("CJA"), which raised monetary jurisdiction of Divi- sional Court. Motion to quash dismissed. Because of timing of Notice of Appeal if Divisional Court was to have jurisdiction it must be found within s. 19(1) (a)(1.1) of CJA. All appellants' claims that were subject of dis- missal must be added together to determine total assessed amount of dismissed claim for purpose of applying s. 19(1)(a) (1.1)(c) or s. 19(1)(a)(1.1)(d) of CJA. Judgment records claims allowed and claims dismissed and is key document to which reference must be made in de- termining applicability or not of s. 19 of CJA. Subsections of s. 19 are disjunctive and must be read and interpreted in that way. However within each sub- section all claims whether al- lowed or dismissed and whether claimed by one party of more than one party are to be added together in order to apply s. 19(1)(a) of CJA. Here applying s. 19(1)(a)(1.1)(d) one looks at total amount assessed by trial judge for all parties. Amount was $35,000 and therefore be- yond jurisdiction of Divisional Court. Accordingly, appeal properly lies to Court of Ap- peal. Canady v. Tucci (July 7, 2009, Ont. C.A., Feldman, MacFar- land and Juriansz JJ.A., File No. M37499; C50307) Order No. 009/190/073 (8 pp.).