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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Agriculture MARKETING Section 9.1(5)(a) of Processed Products Regulations (Can.) not ultra vires Application judge erred in de- ciding that s. 9.1(5)(a) of Pro- cessed Products Regulations (Can.), is ultra vires its enabling legislation, s. 32 of Canada Ag- ricultural Products Act. Condi- tion preventing test authoriza- tion from being used to gain unfair market advantage is simi- lar in kind to condition found at s. 9.1(5)(c) which requires that test market authorization not interfere with prices. Parlia- ment clearly contemplated that CFIA could consider economic and market factors when decid- ing whether to allow test mar- ket authorization. Application judge further erred in reason- ing that material upon which CFIA relied was unsubstanti- ated and therefore could not support CFIA's decision. Issue was whether CFIA's decision was reasonable, having regard to material before it. Application judge's direction to CFIA was set aside. Since it was conceded that CFIA's decision should be set aside, on ground of breach of procedural fairness, matter ordered remitted to CFIA for re-determination. Select Brand Distributors Inc. v. Canada (Attorney General) (Jan. 11, 2010, F.C.A., Evans, Pelletier and Trudel JJ.A., File No. A-255-09) Decision at 179 A.C.W.S. (3d) 242, 75 C.P.R. (4th) 344 was reversed. 184 A.C.W.S. (3d) 281 (26 pp.). Human Rights Legislation DISCRIMINATION Dismissal of complaint was properly upheld on judicial review Appellant black African Muslim applied to be Canadian Forces Reserve Officer. He complained to commission that difficul- ties and delays in application process were as result of dis- crimination based on his race, religion and national/ethnic origin. Commission investiga- tor determined that processing and delay with respect to appli- cation was not connected to any prohibited ground of discrimi- nation. Commission accepted investigator's recommendation and dismissed complaint. On judicial review, application judge concluded that there was no reviewable error in commis- sion's decision and dismissed application. No error in appli- cation judge's conclusion that warranted intervention. Balogun v. Canada (Minister of National Defence) (Jan. 27, 2010, F.C.A., Noel, Pelletier and Layden-Stevenson JJ.A., File No. A-217-09) Decision at 184 A.C.W.S. (3d) 478 was af- firmed. 184 A.C.W.S. (3d) 477 (11 pp.). Intellectual Property Industrial And TRADEMARKS Appellant bringing appli- cation under s. 18(1)(a) of Trade-marks Act (Can.), for ex- pungement of respondent's reg- istration for MASTERPIECE LIVING. Section 6(2) and (3) not prospective when assessing confusion under s. 16(3). Date of application relevant date. No palpable or overriding error by judge in considering evidence. Appeal dismissed. Masterpiece Inc. v. Alavida Life- styles Inc. (Oct. 13, 2009, F.C.A., Sexton, Layden-Stevenson and Trudel JJ.A., File No. A-40-09) Decision at 173 A.C.W.S. (3d) 899, 72 C.P.R. (4th) 160 was affirmed. 184 A.C.W.S. (3d) 492 (15 pp.). Intellectual Property FEDERAL COURT Industrial And PATENTS Reasonable for Commissioner to refuse to reinstate application Applicant did not pay mainte- nance fee. Applicant purported to reinstate application through law firm as applicant's agent. Reinstatement fee and annual maintenance fees were paid. Commissioner found patent application abandoned. Com- missioner refused to reinstate application. Application for judicial review was dismissed. Evidence showed law firm did not file notice of appointment of agent with CIPO as required under legislation. There were no clear efforts to establish le- gal representation prior to ap- plication reaching deadline for reinstatement. There were no omissions or ambiguities that might have been resolved in ap- plicant's favour. Commissioner did not err in refusing payment of fees by law firm because law firm was not authorized cor- respondent for application at time payments were made. Ap- march 22, 2010 • Law Times COURT DECISIONS 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: 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. pointment of law firm as agent of applicant was not received by CIPO by specified date. It was reasonable for commissioner to refuse payment of fees and reinstatement of application. Law firm was not authorized correspondent pursuant to rule 6(1) of Patent Rules (Ont.), and could not attempt to pay main- tenance fees and reinstatement fee under rule 3.1(1). To grant applicant equitable relief in case would have nullified time-limit provided and would have been contrary to case law. Unicrop Ltd. v. Canada (At- torney General) (Jan. 20, 2010, F.C., Boivin J., File No. T-1788- 08) 184 A.C.W.S. (3d) 490 (20 pp.). ONTARIO CRIMINAL CASES Charter Of Rights SEARCH AND SEIZURE Accused did not give valid consent to search and did not waive rights under s. 8 Application by accused, who was charged with one count of possession of marijuana for purpose of trafficking, to exclude evidence against him because his rights under Canadian Charter of Rights and Freedoms were violated. Police officer was looking for accused's brother because she had warrant for his arrest. Only cogent information she had about brother's location was from another police of- ficer. She obtained new arrest warrant from justice of peace and attended at home of ac- cused. Warrant only allowed officer to search for persons and not for things. Accused's mother told her that brother was out of town. Officer ex- ecuted warrant and searched accused's bedroom which was located in basement. She then searched freezer that was contained in adjacent furnace room and found six kilograms of marijuana inside. Accused admitted, prior to his arrest and before being informed of his rights, that marijuana be- longed to him. Application al- lowed. Accused lived in home and had reasonable expecta- tion of privacy within those premises. He did not give valid consent to police to search for items and he did not waive his rights under s. 8 of Charter. Arrest warrant was invalid be- cause officer did not elaborate on any actual and reasonable www.lawtimesnews.com grounds when she met with justice of peace and justice did not request any. Search there- fore violated Charter. Evidence was excluded as its admission would bring administration of justice into disrepute. R. v. Lafontaine (Jan. 19, 2010, Ont. S.C.J., McNamara J., File No. 08-0645) 86 W.C.B. (2d) 320 (11 pp.). Evidence PRIVILEGE Informant's identity not necessary to raise reasonable doubt Trial of accused for 11 weap- ons' offences and one count of possession of cocaine. Charges arose out of his agreement to sell assault rifle and other items to undercover police officer and from subsequent search of his residence. At end of trial ac- cused applied to compel Crown to disclose identity of confi- dential informant as part of his entrapment defence. Accused claimed that informant set him up to sell firearm to officer and thereby entrapped him by com- mitting offences that he would not have otherwise committed. Accused convicted of all of of- fences. Application to disclose informant's identity was denied. Accused did not establish that informant's identity was neces- sary to raise reasonable doubt. There was no evidence that in- formant was material witness who would give evidence that would assist accused in raising reasonable doubt. There was no basis to disclose identity of informant where there was no evidence that informant acted as agent. Although informant arranged contact between offi- cer and accused, informant did not operate under direction of police in doing so. R. v. Barnes (Jan. 7, 2010, Ont. S.C.J., O'Marra J., File No. P0773/07) 86 W.C.B. (2d) 331 (15 pp.). Professions BARRISTERS AND SOLICITORS Order for release of seized funds to pay counsel was refused Accused sought order for re- lease of seized funds in order to pay counsel. Police had seized $14,000 in accused's vehicle. Accused was charged with trafficking in controlled substance. Accused failed on balance of probabilities to es- tablish absence of other assets or means to meet legal expens- es. Applicant was found not to have disclosed all assets. R. v. Gibson (Jan. 29, 2010, Ont. S.C.J., Shaughnessy J., File No. 12298/10) 86 W.C.B. (2d) 347 (5 pp.). Sentence ASSAULT Accused sentenced to 18 months' imprisonment for domestic violence offences Accused found guilty of several charges involving domestic vi- olence in respect of complain- ant and her three children. He had been in custody eight and one third months. Charged with assaulting complainant with weapon in incident where he threatened to kill her with knife sharpening tool. Her son intervened and was assaulted by accused striking and punch- ing him, charged with simple assault. Accused guilty of re- peatedly threatening to kill complainant during course of their relationship. Threats made to complainant and to her sons and overheard by ten- ant living in house. Accused guilty of assaulting complain- ant by threatening her with knife during argument; guilty of assault causing bodily harm where he whipped complain- ant with electrical cord caus- ing bruising and injury to her wrist which required cast. Sig- nificant continuing emotional turmoil and upset, long-term effects of accused's abusive be- haviour. Accused had one prior conviction in Canada for fail to comply with bail for which he received suspended sentence and probation. He also admit- ted conviction for possession of unlicensed firearm for which he received $750 fine in St. Vincent. He has never received sentence of imprisonment. De- portation to follow upon com- pletion of sentence, accused in Canada illegally. Appropri- ate global sentence custodial sentence of 18 months, credit for pretrial custody on 2 for 1 basis equaled one month and 10 days. Three years' probation also ordered. R. v. Harry (Dec. 10, 2009, Ont. C.J., West J., File No. 09-03454) 86 W.C.B. (2d) 355 (5 pp.). ONTARIO CIVIL CASES Bankruptcy And Insolvency ARRANGEMENTS Motion for order requiring company to continue to make certain periodic payments to unionized former employees