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PAGE 14 CaseLawLaw FEDERAL COURT Administrative Law JUDICIAL REVIEW Interest due given respondents had means to calculate taxes due Applicant sought judicial review of respondents' decision that dis- missed payment of interest on sums due. Applicant claimed that decision was unreasonable and lacked transparency in decision- making process. Supreme Court confi rmed decisions rendered previously, ordering payment of sums as replacement of prop- erty taxes due. After decision of Supreme Court, respondents refused to pay interests. Appli- cation allowed. Court affi rmed that decision not to pay sums was not based on impossibil- ity to calculate them, but rather in respondents' claim that sums paid as business tax could be de- ducted. Court affi rmed that in- terests were due to circumstances of case and failure of respondents to make provisional payment. Interests were due given that re- spondents had all means to cal- culate taxes due and were duly notifi ed according to terms of applicable legislation. Montreal (Ville de) v. Administra- tion Portuaire de Montreal (July 27, 2011, F.C., Martineau J., File No. T-833-10; T-936-10) Rea- sons in French. 205 A.C.W.S. (3d) 878 (17 pp.). Employment PUBLIC SERVICE Analysis generic and akin to rubber stamp Application for judicial review of three decisions made by Decision Reviewer of CRA. Applicants made allegations of arbitrary treatment after they were unsuc- cessful in promotional process at CRA. Decision reviewer did not fi nd any evidence of arbitrary treatment in selection process. Application allowed. Reasons in- adequate. Analysis conducted by Decision Reviewer confi ned to sentence in which she expressed that applicants provided insuf- fi cient analysis in their Portfo- lios of Technical Competencies. Analysis generic and akin to rub- ber stamp. Nothing to suggest that allegations of applicants seri- ously considered. Notes of Deci- sion Reviewer raised further con- cerns instead of clarifying reasons or expressing basis for decisions. Notes revealed Decision Re- viewer found some of the work- sheet comments of the Techni- cal Competency Assessors to be questionable. Several e-mails in which Decision Reviewer ex- pressed that requests for decision review might represent arbitrary decisions. Nothing to indicate how Decision Reviewer resolved issues presented by applicants or uncovered by her own review to come to conclusion TCA's were reasonable in awarding scores. D'Urzo v. Canada Revenue Agency (July 28, 2011, F.C., Near J., File No. T-591-10) 205 A.C.W.S. (3d) 979 (19 pp.). Intellectual Property Industrial And PATENTS Disclosure in patent sufficient for purpose of demonstrating utility Application by pharmaceutical company for order prohibiting Minister of Health from issuing notice of compliance to com- petitor prior to expiration of related NOVEMBER 21, 2011 • LAW TIMES Follow on www.twitter.com/lawtimes COURT DECISIONS Untitled-3 1 CaseLaw is a weekly summary of notable 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: 5/5/10 3:55:30 PM These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. T-1473-09) 205 A.C.W.S. (3d) 1065 (69 pp.). TAX COURT OF CANADA Contempt Of Court GROUNDS Claim that auditors pilfered boxes of documents not substantiated patent. Pharmaceutical company held patent in connec- tion with drug known as anas- trozole. Anastrozole was used in treatment of cancer, particularly post-menopausal breast cancer. Cancers at issue were depen- dent on presence of hormone estrogen. Anastrozole inhibited enzyme that converted testoster- one to estrogen and thereby re- duced estrogen level. Competitor wished to sell generic version of anastrozole. Competitor applied for notice of compliance and served notice of allegation alleg- ing invalidity of patent. Applica- tion granted. Promise of patent only extended to inhibition of formation of estrogen from tes- tosterone and not to treatment of breast cancer. At best, patent recognized anastrozole had po- tential to be developed as treat- ment for breast cancer. Patent did not expressly claim fewer side eff ects than comparison drug. Pharmaceutical company had demonstrated utility of anastro- zole when patent was initially fi led. Disclosure in patent was suffi cient for purpose of demon- strating utility. Results from tests noted in patent did not have to be as conclusive as competitor suggested. Requisite standard for demonstrating utility was not same as regulatory standard for establishing safety and eff ective- ness of drug. Disclosure in pat- ent was suffi cient for purpose of demonstrating utility. No skilled person reviewing test results would have doubted anastrozole had utility. Potential utility of anastrozole had not been obvi- ous. Th ere had not been obvious starting point that would have led to development of anastro- zole. Astrazeneca Canada Inc. v. Mylan Pharmaceuticals ULC (Aug. 29, 2011, F.C., Rennie J., File No. Motion by director of taxpayer for order for contempt. Minister assessed director under Excise Tax Act (Can.) as liable for tax debt of corporation. Director fi led appeal. Director's motion for disclosure of certain docu- ments was granted. Motion dis- missed. Director did not provide even prima facie case that order for documents had not been complied with. Director provid- ed list of documents he claimed were being withheld, but this list suff ered from vagueness. Claim that auditors pilfered boxes of documents was not substanti- ated and could not form basis for contempt order against Crown. Order granting appeal would be inappropriate on preliminary motion. Exercise of due diligence was not proper ground for al- lowing appeal and could only be determined with full hearing. Minister had not breached costs order. Dismissal of tax-related criminal charges against director did not provide support for mo- tion. Lougheed v. Canada (Aug. 26, 2011, T.C.C., Woods J., File No. 2006-2031(GST)G) 96 W.C.B. (2d) 278 (10 pp.). Employment Insurance APPEAL Nature of contract confirmed appellant was autonomous Appellant sought revision of Minister's decision that dismissed application for employment in- surance. Minister affi rmed that appellant was not employee for concerned corporation and worked as autonomous through- out his contract. Appellant claimed that employee status was not mentioned in job off er let- ter but was discussed personally with representatives of corpora- tion. Appellant affi rmed that ac- tivities were supervised and that corporation exercised control over him. Appeal not allowed. Absence of fi xed working hours, control over appellant's work and great fl exibility to perform activ- ity confi rmed appellant's status of self-employed. Court under- scored that nature of contract, es- tablishing prospective gains and losses, confi rmed that appellant was autonomous. www.lawtimesnews.com 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. Watzke v. M.N.R. (July 15, 2011, T.C.C., Miller J., File No. 2010- 2371(EI); 2010-2372(CPP)) Reasons in French. 205 A.C.W.S. (3d) 980 (8 pp.). Unemployment Insurance APPEAL Contract signed had sole purpose to make appellant eligible for unem- ployment insurance Appellant sought revision of decision that dismissed applica- tion for unemployment insur- ance. Appellant was common law spouse of owner of payor. Minister dismissed application on the grounds that contents of contract were determined by relation between payor and ap- pellant. During inquiry, Revenue Canada found contradictions in hours worked and type of service performed and concluded that appellant did not reach mini- mum threshold for benefi t. Ap- peal not allowed. Diff erent from other employees, appellant did not have his working hours reg- istered and cheques issued did not correspond to salary. Based on evidence presented, court concluded that contract signed between payor and appellant had sole purpose to make him eligible for unemployment insurance. Dumont v. M.N.R. (Aug. 26, 2011, T.C.C., Favreau J., File No. 2007-3141(EI); 2007- 3041(EI)) Reasons in French. 205 A.C.W.S. (3d) 1116 (14 pp.). ONTARIO CRIMINAL CASES Extraordinary Remedies HABEAS CORPUS Judge erred by failing to remand accused after cancellation of release Accused pleaded guilty to three counts of breaching an under- taking while awaiting sentenc- ing on underlying charges. At sentencing hearing on breach counts Crown sought cancella- tion of accused's release on un- derlying charges. Defence argued that court had no jurisdiction to cancel release because accused had not formally been arrested pursuant to s. 524(1) or (2) of Criminal Code. Sentencing judge imposed 10-day sentence and ordered accused's release cancelled. Matter was spoken to again two days later after judge was told she had not remanded the accused. Sentencing judge remanded accused in custody for six weeks to the date for her sentencing hearing on the out- standing charges. Application for writ of habeas corpus granted. Sentencing judge was entitled to cancel accused's release despite lack of formal arrest pursuant to s. 524(1) or (2). Accused was lawfully detained and had re- ceived notice that Crown would bring s. 524 application so arrest or re-arrest was not required. Sentencing judge erred by failing to remand accused to next avail- able bail court after cancellation of her release. Warrant of remand quashed. R. v. Ramage (June 13, 2011, Ont. S.C.J., Fregeau J., File No. CR-11-006-MO) 96 W.C.B. (2d) 293 (29 pp.). ONTARIO CIVIL CASES Building Liens ACTION Defendant cannot rely on baldly asserted claim to defeat motion Motion for summary judgment by plaintiff electrical subcontrac- tor who had done work on two projects for defendant contractor for amounts due and owing on construction project and mo- tion for leave under s. 67(1) of Construction Lien Act (Ont.), to bring an interlocutory motion. Defendant refused to pay bal- ance under contract because they were setting off balance of earlier contract which had preceeded project. Motions granted. No trial necessary to determine issue of liability on contract or amount of claim. Evidence on two proj- ects entirely diff erent and distinct from one another. Relationship between parties did not suggest they had practice or understand- ing there was a running account between them with respect to diff erent projects. Set-off claim not much more than bald asser- tion that plaintiff breached its contractual obligations and that defendant had incurred dam- ages arising from engagement of new electrical subcontractor. Defendant cannot rely on baldly asserted claim to defeat motion for summary judgment. Defen- dant responding to motion for summary judgment with set-off claim bears onus to put its best foot forward with respect to that claim. Unjust to deny relief where defendant had led no evi- dence that parties had past com- mercial relationship that treated their obligations as a running account, where defendant had declined to put its best foot for- ward and where plaintiff 's case conceded. Total Electrical Systems Inc. v. Col- lege Boreal D'Arts Appliques et de

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• Monetary Penalties
• Repatriation Revisited
• Focus On Environmental Law