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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Appeal FRESH EVIDENCE Motion to adduce fresh evidence on appeal from decision finding ss. 159.1 to 159.7 of Immigration and Refugee Protection Regulations (Can.) invalid was dismissed Application for judicial review was allowed. Section 159.1 to 159.7 of Immigration and Refugee Pro- tection Regulations (Can.) and Safe Third Country Agreement, were found invalid. Judge held it was unreasonable for Governor in Council to have designated United States as safe third coun- try. Appellant brought motion to adduce fresh evidence of notices published in Federal Register ap- plying waiver to named groups. Evidence was to respond to find- ing there was insufficient evidence waiver ameliorated harsh provi- sions of United States law. Motion was dismissed. Evidence could reasonably have been adduced earlier. Evidence was incomplete. Fresh evidence was not practically conclusive of appeal. Interests of justice would not be served by further complicating complex re- cord or by delaying disposition of matter. Canadian Council for Refugees v. Canada (May 2, 2008, F.C.A., Evans J.A., File No. A-37-08) Or- der No. 008/133/078 (9 pp.). FEDERAL COURT Administrative Law JUDICIAL REVIEW Proceedings seeking declaratory order lacked true question of law Applicant who had been arrested by Ontario police for demonstrat- ing against Jewish people sought judicial review of decision of pro- thonotary to throw out his case. Applicant sought a declaratory or- der to state that the government of Canada was responsible for North American insecurity and injustice resulting from inaction against Jewish mafia which resulted in 9/11. Prothonotary had been cor- rect to throw the case out since applicant had no valid interest to pursue the case since his anti- Semitist motives were misplaced. Case lacked a true question of law since the order sought was merely an iteration of fact. No sanction could be ordered against Attorney General since the R.C.M.P. were not involved in the arrest of appli- cant and Attorney General is not liable for behavior of police force. Mandamus order sought which was blatantly bias anti-Jewish could not be passed since it would contravene Canadian constitu- tional norms therefore prothono- tary decision to throw out the case was correct. Appeal dismissed. Hung v. Canada (Procureur gen- eral) (May 16, 2006, F.C., Shore J., File No. T-1471-05) Reasons in French. Order No. 008/065/054 (29 pp.). Charter Of Rights FUNDAMENTAL JUSTICE Provisions of National Defence Act (Can.) declared unconstitutional Accused charged with sexual as- sault occurring on military base. Director of Military Prosecutions decided to prefer charge and chose Standing Court Martial as court before which trial would proceed. Accused challenged constitutional- ity of ss. 165.14 and 165.19(1) of National Defence Act (Can.) and Article 111.02(1) of the Queen's Regulations and Orders for the Canadian Forces, which give pros- ecution exclusive power to unilat- erally choose court martial before which trial will take place. Ap- plication was dismissed and trial proceeded. Accused found guilty. Accused appealed against legal- ity of guilty finding on basis that Standing Court Martial did not September 22, 2008 • 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. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/28/08 10:43:29 AM 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. have jurisdiction to try him and sought declaration that impugned provisions were of no force and effect. Appeal allowed. Sections 165.14 and 165.19(1) of the National Defence Act and their counterpart, article 111.02(1) of the Queen's Regulations and Or- ders for the Canadian Forces vio- late s. 7 and right to fair trial guar- anteed by 11(d) of the Canadian Charter of Rights and Freedoms. Giving prosecution in military justice system right to choose trier of facts before whom trial of per- son charged with serious Crimi- nal Code offences will be held, deprived accused, in violation of principles of fundamental justice, of constitutional protection given to offenders in criminal justice system. Provisions could not be saved under s. 1 of the Charter. Appropriate remedy was declara- tion of unconstitutionality. R. v. Trepanier (Apr. 24, 2008, Court Martial App. Ct., Le- tourneau, Noel and de Montigny JJ.A., File No. CMAC-498) Or- der No. 008/133/065 (68 pp.). Civil Procedure COSTS Plaintiffs entitled to interim costs Plaintiffs fished in river on reserve where rock fall created natural fishery for salmon. Defendant blasted rocks removing obstruc- tion allowing salmon to swim through. Result was total destruc- tion of fishery. Plaintiffs brought action. Plaintiffs brought motion for interim or advanced costs. Plaintiffs supported litigation unaided for 20 years. Plaintiffs were deeply in debt and had no sources of credit. Plaintiffs would be unable to prosecute action to trial or pursue settlement negotia- tions without help. Plaintiffs had reasonable chance of obtaining some of relief sought. Issues raised were of great importance to plain- tiffs, Crown and other aboriginal peoples. Plaintiffs were put to extraordinary delays by Crown's tactics. Cases required plaintiff to benefit from interim costs order. Parties were directed to consult to prepare draft form of order to be submitted and discussed. Hagwilget Indian Band v. Canada (Minister of Indian Affairs and Northern Development) (May 2, 2008, F.C., Hugessen J., File No. T-363-85) Order No. 008/133/067 (21 pp.). Intellectual Property Industrial And PATENTS Abuse of process argument was ill-founded Applicant sought prohibition or- der. Patent was held not to con- tain claims for medicine or use of medicine and ineligible for list- ing. Respondent's motion to dis- miss application was dismissed. Respondent's attempt to raise ad- ditional ground for dismissal at eleventh hour and without prop- erly amending notice of motion was not permitted. Respondent's argument that it was determined patent contained no relevant claim for medicine or use of medicine was without founda- tion and was dismissed. Respon- dent's argument application was abuse of process on basis of prior determination patent was not eligible for listing was ill-founded and was dismissed. Nycomed Canada Inc. v. Canada (Minister of Health) (Apr. 29, 2008, F.C., Tabib Prothonotary, File No. T-1942-07) Order No. 008/133/054 (17 pp.). TRADEMARKS No basis to allow amendment to statement of opposition Appeal by S. from dismissal of its opposition to P.'s application for registration of trademark in association with fastener brack- ets for attaching deck boards. S. contended that prothonotary erred in dismissing S.'s motion to amend statement of opposition it filed before registrar in order to specifically plead that P.'s ap- plications for trademark registra- tion did not confirm to s. 38(h) of Trademark Act (Can.). Appeal dismissed. Only in rarest circum- stances necessary to render justice would court permit amendment to statement of opposition to add new ground of opposition not asserted before registrar. There would be inherent unfairness in allowing litigant to "save up" new grounds on appeal. Court could not accept S.'s contention that no new grounds were be- ing sought here and that no new record would be necessary. On S.'s motion before prothonotary it sought order permitting it to file affidavits in support of more specifically detailed ground of opposition set out in amended statement of opposition. Place to seek amendment to statement of opposition was before regis- trar and not before this court. In circumstances there was no basis on which requested amend- ment could be granted. Simpson Strong-Tie Co. v. Peak In- novations Inc. (May 1, 2008, F.C., Lemieux J., File No. T-1570-07; T-1571-07) Appeal from 62 C.P.R. (4th) 390 dismissed. Or- der No. 008/133/069 (8 pp.). ONTARIO CIVIL CASES Civil Procedure CHANGE OF SOLICITOR Motion to remove counsel of choice was premature Bank sought to recover on loan based on conspiracy to defraud. Defendants were principle debtor and two guarantors. Defendants sought to remove plaintiff's so- licitor arguing plaintiff 's solicitor acted for both lender and borrow- er in loan transaction, would be necessary witness in action, and might be added as third parties. Motion was dismissed. Solicitors did not act as defendants' lawyer on loan transaction. There was no evidence to suggest defendant provided confidential informa- tion to solicitors. Defendant was never client of firm. No confi- Your next best move? Choose to have our IT expertise in your corner. SMSS.COM CHARLOTTETOWN Untitled-4 1 www.lawtimesnews.com FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN'S 9/17/08 10:08:42 AM

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