Law Times

Law Times • January 30, 2012 was not affected by presence of trade-mark on register for last five years. Applicant's delay to commence proceedings was inconsistent with behaviour of party that perceived itself to be person affected. Trademarks bore little resemblance to one another in appearance, sound and idea. Similarities between trade-marks did not warrant finding of confusion at time respondent's registration was granted. Trademark was adapt- ed so to distinguish. Trademarks were not confusing. Applicant's sales of products did not render respondent's trademark non- distinctive. Respondent's regis- tration for trademark was valid. Application for expungement was dismissed. McCallum Industries Ltd. v. HJ Heinz Co. Australia Ltd. (Oct. 26, 2011, F.C., Pinard J., File No. T-1702-10) 208 A.C.W.S. (3d) 179 (29 pp.). ONTARIO CIVIL CASES Bankruptcy and Insolvency TRUSTEE Respondent doing its best to stonewall receiver Receiver was granted full pow- ers of investigation and moni- toring in relation to respondent. Receiver sought specific relief requiring respondent to provide access to certain record storage sites and to deliver up records of its business, including elec- tronic records. Receiver also seeks an expansion of its exam- ination powers so that it can examine under oath (i) all indi- viduals that allegedly advanced moneys to respondent; (ii) all individuals and corporations which have had loans due to or from respondent; and (iii) all individuals and/or corpora- tions that received funds from sale of Royalton Residences, as defined in appointment order. Application granted. To date respondent and its principals had denied receiver access to computers on which records are stored as well as refused to permit receiver to make bitmap image of all information con- tained therein. Consequently, respondent and principals had breached appointment order. They had now been in breach of appointment order for some three months. Respondent must grant receiver immediate, unfet- tered access to computers and servers on which records were located. Respondent's failure to do so risked attracting signifi- cant judicial sanctions. Based on chronology of events set out in receiver's reports, failure of respondent to comply with production requirements of appointment order rendered it just, reasonable and necessary to grant receiver requested pow- ers of examination. Evidence disclosed that respondent was doing its best to stonewall receiver and delay production of relevant documents and infor- mation. Under those circum- stances, expansion of receiver's powers of examination was nec- essary in order to enable receiv- er to complete its investigation within stipulated time. General Electric Canada Real Estate Financing Holding Co. v. Liberty Assisted Living Inc. (Sep. 28, 2011, Ont. S.C.J. (Comm. List), Brown J., File No. CV-11- 9169-00CL) 208 A.C.W.S. (3d) 20 (12 pp.). Insurance SUBROGATION Until insured was fully indemnified, it was entitled to control litigation This was appeal and cross- appeal from application judge's decision declining to give appellant insurers carriage and control of action. Appellants paid out $1.1 million to respondent insured following large loss caused by fire and explosion in apartment build- ing. Respondent claimed it had additional uninsured loss of $700,000. Respondent com- menced action against alleged wrongdoer and it included both claim for uninsured loss and appellants' subrogated claim. Appellants sought car- riage and control of action but application judge declined and awarded respondent costs of $30,000. Appeal and cross- appeal dismissed. Judge did not err in finding that until insured was fully indemnified for all losses, insured and uninsured, it was entitled to control liti- gation. Appellants' focus on factor of monetary amount of competing claim was too nar- row. Attention must be paid to conduct of insured and insured in context of entire action. Application judge did not err in concluding that this was not case where insurer's interest was so vastly disproportion- ate to insured's interest that it would be unreasonable to allow insured to have control of liti- gation. Application judge did not err in concluding that full indemnity claim for costs was unwarranted. Zurich Insurance Co. v. Ison T.H. Auto Sales Inc. (Oct. 25, 2011, Ont. C.A., MacPherson, LaForme and Epstein JJ.A., File No. C53568) Decision at 333 D.L.R. (4th) 696, 199 A.C.W.S. (3d) 1294 with additional rea- sons at 333 D.L.R. (4th) 718, 202 A.C.W.S. (3d) 577 was affirmed. 208 A.C.W.S. (3d) 189 (6 pp.). Labour Relations COLLECTIVE AGREEMENT Entitlement had crystallized, vested and continued beyond end of employment On June 14, 2008, profes- sor advised university he had become incapacitated by serious illness and was applying for sick leave and long-term disability benefits. University never took any issue with legitimacy of his illness. University paid sick leave benefits to professor on June 10, 2008 to June 30, 2008, when his term of employment ended. He did not receive any sickness benefits for remainder of the 180-day waiting period CASELAW until his long-term disabil- ity benefits commenced on December 12, 2008. He contin- ued to receive long-term dis- ability benefits. Association which represented faculty filed grievance on professor's behalf alleging breach of collective agreement and claimed sick- ness benefits for period between June 30, 2008 and December 12, 2008. Arbitrator found profes- sor was entitled to the full 180 days of sick leave. Application by university for judicial review for order quashing that arbitra- tion award was dismissed. In this case, grievance alleged uni- versity breached article 20.5(a) of collective agreement. To establish whether such breach had occurred, arbitrator was required to determine meaning of language of that article and its application to factual situ- ation before him. Standard of review in this case was reason- ableness. In this case, arbitrator concluded there was distinction between "entitlement" and "cov- erage". He ruled that, although coverage ended with employ- ment, entitlements such as sick leave benefits had vested in pro- fessor when he was still employ- ee and he was, therefore, entitled to benefits for 180 days or until his long-term disability bene- fits began. Arbitrator's decision was transparent, rational and justified in context of facts and law. This finding that professor 's entitlement had crystallized, vested and continued beyond end of his employment was rea- sonable. Carleton University v. C.U.A.S.A. (Bottomley) (Oct. 5, 2011, Ont. S.C.J. (Div. Ct.), Valin, Belch and Rady JJ., File No. 10-1609) Application for judicial review from 193 L.A.C. (4th) 343, 101 C.L.A.S. 246 was dismissed. 208 A.C.W.S. (3d) 81 (5 pp.). ONTARIO CRIMINAL CASES Assault ASSAULTING PEACE OFFICER Accused was strong man but was not Hercules Accused charged with pos- session of crack cocaine for purpose of trafficking, posses- sion of property derived from criminal offence, failing to stop vehicle which he was driving, dangerous driving, assault of two police officers involved, escaping lawful custody and attempting to take firearm from one of officers. Accused was driving in vicinity of recent armed robbery of a pharma- cy and police were searching for a vehicle that matched the description of getaway vehicle. Police activated their lights for accused to pull over but he did not comply, a chase ensued and accused got into an accident. When he got out of his vehicle accused struggled with officers. Accused man- aged to flee but civilians tack- led accused and police arrested www.lawtimesnews.com him. Bag of crack cocaine was found on accused and another found in his vehicle. Accused guilty of possession of crack cocaine for purpose of traffick- ing, failing to stop and danger- ous driving. Accused not guilty of two counts of assaulting a peace officer, escaping lawful custody, attempting to secure officer's weapon and possession of proceeds of crime. Crown conceded that accused was only detained at point when he was tackled by group of civilians and handcuffed and that ear- lier attempts to detain him by police were unsuccessful until he was handcuffed and therefore there could be no finding that he was escaping lawful custody. Other officer and independent witness who saw whole struggle did not see accused reach for one of officer's guns. It may well have been that during struggle and before accused was able to break free, officer felt pressure on his belt and thought that accused was trying to access his weapon. Court found that Crown had not proved beyond reasonable doubt that accused assaulted police officers by simultaneously pushing back both officers from a push-up position before getting to his feet to run. Accused was a strong man but was not Hercules and two officers involved were also strong young men. Accused had $455.00 on him and claimed he had it to go shopping which was not unreasonable. R. v. Brown (Oct. 31, 2011, Ont. S.C.J., Wilson J., File No. 11/90000519/0000) 97 W.C.B. (2d) 529 (28 pp.). Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Police did not conduct investigation but rather descended on accused Application by accused, who was charged with possession of cocaine for purpose of traf- ficking and for possession of crime proceeds, to exclude evi- dence because his rights under Canadian Charter of Rights and Freedoms were violated. Accused was arrested by four plainclothes police officers at a street corner. They acted after one of them received informa- tion from confidential source. Accused was found to be in pos- session of almost one ounce of crack cocaine, most of which was in quarter and half gram plastic wrapped packages, a digital scale and $217 in cash. Court accepted accused's ver- sion of events, which was that two officers stopped him, searched him and found evi- dence. Application allowed. Police did not conduct investi- gation but, rather, they descend- ed on accused and arrested him. Officer who received informa- tion from confidential source acknowledged that he did not have reasonable grounds to arrest accused. There was no evidence that accused attempt- ed to engage in any criminal activity before he was detained by police. Accused's detention was unlawful and arbitrary PAGE 15 and it violated s. 9 of Charter. Manner in which accused was searched violated s. 8 of Charter. Searching accused's pockets, in absence of any reasonable basis to justify search, was serious breach that deprived accused of his right to privacy. Even though cocaine trafficking was seri- ous offence and Crown did not have case without this evidence, evidence was excluded for its admission, because of manner in which it was obtained would bring administration of justice into disrepute. R. v. MacGillivray (Sep. 16, 2011, Ont. S.C.J., O'Marra J., File No. 09-90000790-0000) 97 W.C.B. (2d) 530 (10 pp.). Indictment and Information AMENDMENT Ministry Treating information as a nullity was not measured response to inattentiveness of Labour sought to resurrect proceeding in Provincial Offences Court under Occupational Health and Safety Act (Ont.) relat- ing to collapse of a crane on a worksite. Inspector had attend- ed before a Justice of the Peace ("JP") and presented her with an Information and three sum- monses Inspector directed to accused. swore Information before JP. However, JP initially failed to sign the Information confirming that the Information had in fact been sworn. When inspector pointed this out, JP apologized and then signed the Information but unfortunately, she signed the Information on line where informant is sup- posed to sign. Also, while JP included the day and month on the Information, she did not include the year. In addition to those problems, inspector did not sign the Information nor did he place his name on front of the Information where it ought to appear. When the informa- tion came before another JP she found she did not have juris- diction to adjourn the matter because the information was unsworn. Application is allowed, decision of JP quashed and mat- ter is remitted back to Provincial Offences Court to proceed on the Information as necessar- ily amended. JP was entitled and ought to have given Crown counsel opportunity to call extrinsic evidence to establish that the Information was prop- erly sworn before issuing JP and to make such other amend- ments to the Information as were necessary assuming that extrinsic evidence was capable of correcting other flaws. In particular, JP was in error in stating that evidence of inspec- tor did not "really matter" and that she did not have jurisdic- tion to adjourn the Information to another date to permit all of this to occur. Treating the Information as a nullity was not a measured response to inat- tentiveness. R. v. Rumble Foundations (Ontario) Ltd. (Oct. 17, 2011, Ont. S.C.J., Nordheimer J., File No. M0102/11) 97 W.C.B. (2d) 553 (8 pp.). LT

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