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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Civil Procedure COSTS Risks of costs being awarded did not disappear when complainant decided not to defend tribunal's determination Canadian International Trade Tribunal made procurement de- terminations upholding, in part, complaints made by complain- ant pursuant to Canadian In- ternational Trade Tribunal Act. Complaints related to contracts issued to qualifi ed bidders in process governed by Network- ing Equipment Support Services National Master Standing Off er which is means by which federal government departments may obtain computer networking equipment. Crown contended tribunal lacked jurisdiction to determine complaints because complainant did not submit bid. Tribunal found that no act of Public Works and Govern- ment Services Canada ("PW- GSC") in procurement process precluded complainant from submitting bid. Crown's appli- cation for judicial review grant- ed. Amount of costs awarded to Crown should not be reduced or limited because complainant did not oppose consolidated ap- plication. Crown not relieved of normal burden on applicant to produce record, prepare memo- randum of fact and law, and appear at hearing to make sub- missions. Having initiated com- plaint proceedings, complainant bore risk that tribunal's deter- minations might be successfully challenged and that Crown might be awarded costs. Risk did not disappear when com- plainant decided not to defend tribunal's determination. Enterasys Networks of Canada Ltd. v. Department of Public Works and Government Ser- vices (June 20, 2011, F.C.A., Blais C.J., Sharlow and Main- ville JJ.A., File No. A-264-10; A-312-10; A-321-10) 204 A.C.W.S. (3d) 899 (18 pp.). Intellectual Property Industrial And PATENTS Trial judge did not apply three-prong test for determination of inducement Appeal of decision declaring that appellants had infringed re- spondents' patent. Respondents had developed seal assembly used around pump shafts in oil wells to prevent oil from escap- ing around shafts. Respondents had sold prototype to two other companies and then obtained patent. Appellants started man- ufacturing and selling similar design. Lower court affi rmed that appellants had infringed respondents' patent rights and issued injunctive relief. Sale to other companies did not con- stitute disclosure to public even without confi dentiality regime since expectation of confi dence existed. Appeal was based on claims construction, prior dis- closure, obviousness, witness credibility, inventorship, mis- representations to Patent Offi ce and adverse inferences. Appeal partially allowed with respect to adverse inferences. Ruling of infringement with respect to method claim was reversed as appellants did not practice such method. Trial judge had assumed that sales to customers occurred and that they would have used instruction manual, thus, inferring that there ap- pellants had induced third par- ties to infringe method claim. Trial judge did not apply three- prong test for determination of inducement. Signifi cant gaps in evidentiary support existed. Court returned issue of infringe- ment of method claim to lower court judge for redetermination in accordance with established test. All other arguments failed as appellants did not show pal- pable and overriding error by trial judge. Weatherford Canada Ltd. v. Cor- lac Inc. (July 18, 2011, F.C.A., Nadon, Evans and Layden-Ste- venson JJ.A., File No. A-282- 10) Decision at 189 A.C.W.S. (3d) 478 was reversed in part. 204 A.C.W.S. (3d) 888 (87 pp.). TAX COURT OF CANADA Employment Insurance CONTRIBUTIONS Worker was in subservient position Appeal by payor from deci- sions by Minister determining that worker was employed in insurable and pensionable em- ployment pursuant to s. 5(1) (a)of Employment Insurance Act (Can.), and s. 6(1)(a) of Canada Pension Plan. Payor provided residential plumb- ing services. Appeal dismissed. Worker was employee and not independent contractor. Worker was performing his services on behalf of payor and not as per- son conducting business on his OcTOber 24, 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. 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. own account. At end of day, cus- tomers were those of payor and not of worker. If damages oc- curred at work site, it was payor that incurred cost of rectifying problem. Th ere was maximum amount worker could earn, and his risk for fi nancial loss was limited. Worker was in subser- vient position. Worker was on call every day, was told where to go and his hours and loca- tion throughout day were moni- tored. 177398 Canada Ltd. v. M.N.R. (June 14, 2011, T.C.C., Camp- bell J., File No. 2010-2412(EI); 2010-2413(CPP)) 204 A.C.W.S. (3d) 936 (10 pp.). Taxation GOODS AND SERVICES TAX Minister not statute-barred from assessing taxpayer more than four years after corporation filed returns Appeal by taxpayer from assess- ment by Minister under Excise Tax Act (Can.). Taxpayer was director of corporation. Corpo- ration failed to remit GST for reported period ending Febru- ary 28, 1994 to May 31, 1999. Taxpayer was assessed by way of director's liability assessment. Appeal dismissed. Minister was not statute-barred from assess- ing taxpayer more than four years after corporation fi led its returns. Due diligence defence was not applicable. Taxpayer could not successfully argue that he was assessed more than two years after ceasing to be director. Siow v. Canada (June 14, 2011, T.C.C., Pizzitelli J., File No. 2008-3820(GST)G) 204 A.C.W.S. (3d) 938 (19 pp.). FEDERAL COURT Civil Procedure COSTS Applicant failed to establish that he did not have financial means to cover legal costs Applicant sought advance costs order to allow him to defend application made by Attorney General seeking to seal evidence in judicial review application brought by applicant seeking revision of decision of Minister of Transport to include him on no fl y list. Application denied. Supreme Court of Canada juris- prudence imposed three criteria for advance allocation of costs. Applicant's case fell at fi rst of these criteria since he failed to es- tablish that he did not have any other fi nancial means to cover le- gal costs. Applicant worked as a www.lawtimesnews.com software engineer and had salary of $56,000. Costs of living did not amount to this value. Ap- plicant had also received family support during studies and had not shown unavailability of such support to defend his rights nor that organizations would be un- willing to assist him. Moreover, interests of applicant would be adequately protected given that court had appointed at cost of Attorney General two lawyers as amici curiae. Further criterion that interest of case must extend beyond individual case of appli- cant was not met. Canada (Procureur General) v. Al Telbani (July 27, 2011, F.C., de Montigny J., File No. DES- 2-10) Reasons in French. 204 A.C.W.S. (3d) 732 (21 pp.). Immigration JUDICIAL REVIEW Applicant was liable for his own failure Applicant sought judicial review of decision of commissioner who denied applicant's request to re- open his fi le applying for refugee status in Canada. Applicant had moved home and alleged that he had informed authorities of this. Despite move he accepted that he received some correspon- dence from Citizenship and Immigration Canada, but not notice of hearings which were also sent to his lawyer who had been relieved of his functions by court on grounds of being un- able to communicate with cli- ent. Client eventually contacted lawyer 19 months later to know progress of his fi le. Application denied. Applicant demonstrated serious failures to remain abreast of proceedings and was cause of his own misfortune. Applicant was liable for his own failure and would receive pre-removal risk assessment where he could state his case against deportation. Garcia v. Canada (Minis- tre de la Citoyennete et de L'immigration) (July 22, 2011, F.C., Harrington J., File No. IMM-6957-10) Reasons in French. 204 A.C.W.S. (3d) 872 (7 pp.). PERSON IN NEED OF PROTECTION Board failed to consider whether there were mixed motives Application for judicial review decision by board determining that applicants were neither Con- vention Refugees nor persons in need of protection. Applicants were family of Indo-Guyanese descent. Family claimed fear of ethnically-motivated violence at hands of criminal gangs. Board found that applicants had failed to rebut presumption of state protection. Application allowed. Board's conclusion was unrea- sonable. Board erred in failing to consider whether or not there were mixed motives and wheth- er or not motives could consti- tute conviction nexus required. Board approached issue of mo- tive for attacks on applicants as yes or no question. Criminals may have been motivated by combination of applicants' ra- cial and economic status. Th at motive was at least not purely economic was supported by ap- plicants' reference to racial slurs made against them during inci- dents. Gonsalves v. Canada (Minister of Citizenship and Immigra- tion) (June 7, 2011, F.C., Zinn J., File No. IMM-3827-10) 204 A.C.W.S. (3d) 874 (12 pp.). Intellectual Property Industrial And TRADEMARKS Invoices sufficient to establish usage of trademark Applicant appealed decision of registrar who declined applica- tion for removal of defendant's trademark from registry. Regis- trar found that invoices estab- lished that defendant had explic- itly sold trademarked product to chiropractors thus had used trademark within last year and applicant could not seek remov- al of trademark under s. 45 of Trademarks Act (Can.). Appeal dismissed. Court was required to assess reasonableness only of decision of registrar. Decision was reasonable. Invoices were suffi cient to establish usage of trademark. Th ere was no re- quirement of evidence of deliv- ery of invoices with product in question. Moreover, evidence of defendant established that sales were made in normal course of business of defendant. Dumoulin v. Laboratories Bio- Sante Inc. (June 30, 2011, F.C., Bedard J., File No. T-1663- 08) Reasons in French. 204 A.C.W.S. (3d) 889 (14 pp.). Remedies APPLICATION TO REVIEW Omission in dealing with each aspect of evidence not omission to consider them Convicted sought judicial re- view of Ministerial decision that dismissed application to review condemnation for murder on grounds of miscarriage of justice. Ministerial review was dismissed on grounds that convicted did not present any reasonable infor- mation or evidence that condem- nation was result of judicial error and that key witness changed ver-

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