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Law Times • February 7, 2011 CaseLawLaw FEDERAL COURT OF APPEAL Industrial And Intellectual Property TRADEMARKS Appeal effectively sought to reargue case Application judge struck out GSK Mark from Register of Trademarks. GSK Mark con- cerned two-tone purple colour combination applied to surface of disk-shaped inhalers known as ADVAIR DISKUS. Judge concluded that consumers of inhalers (physicians, pharma- cists and patients) did not as- sociate colour and shape with one source. More specifi cally, he found that patients gener- ally associated GSK Mark with therapeutic use, not source, and that no physician or phar- macist associated GSK Mark and single source. Appeal ef- fectively sought to reargue case without pointing to any specifi c instance where judge's appreciation or assessment of evidence was palpably wrong. Apotex Inc. v. Canada (Regis- trar of TradeMarks) (Nov. 19, 2010, F.C.A., Nadon, Sharlow and Layden-Stevenson JJ.A., File No. A-111-10) Decision at 186 A.C.W.S. (3d) 804, 81 C.P.R. (4th) 459 was af- fi rmed. 195 A.C.W.S. (3d) 807 (6 pp.). Taxation INCOME TAX Reasonably open to judge to conclude trusts resident in Canada Appellant had been assessed under Income Tax Act (Can.), for 2000 taxation year. Assessed tax arose from capital gains realized by trusts on disposi- tion of shares of two Canadian corporations at time when, ac- cording to Crown, trusts were residents in Canada. Tax Court Judge correctly dismissed ap- peals. Central management and control test applied in de- termining residence of trusts. It was reasonably open to Tax Court Judge to conclude on basis of record that for purpos- es of Act, trusts were resident in Canada in 2000. However, if residence of trust was to be determined only on basis of residence of trustee, then there could be no real doubt that trusts were resident in Barba- dos in fact and for purposes of Barbados Tax Treaty. If so, then contributions test was met and, therefore, s. 94(1) of Act ap- plied to trusts. It followed that s. 94(1)(c) applied to deem trusts to be resident in Canada for purposes of Part I of Act. Th erefore, trusts were entitled to benefi t of exemption from Canadian tax in s. 4 of Article XIV of Barbados Tax Treaty. If residence of trusts was Barba- dos for treaty purposes, trusts could not misuse or abuse Bar- bados Tax Treaty by claiming exemption and, as such, gener- al anti-avoidance rule in s. 245 of Act did not apply. Appeals dismissed on basis that trusts were resident in Canada. Garron Family Trust v. Canada (Nov. 17, 2010, F.C.A., Na- don, Sharlow and Stratas JJ.A., File No. A-419-09; A-420- 09) Decision at 181 A.C.W.S. (3d) 819 was affi rmed. 195 A.C.W.S. (3d) 881 (51 pp.). TAX COURT OF CANADA Civil Procedure PLEADINGS Amendment of notice of appeal to plead Charter issue disclosed reason- able cause of action Appellant donated money to swim club that children went to. Appellant reported money as charitable gift and claimed deduction. Respondent Min- ister of National Revenue de- nied deduction, refusing to apply administrative policy that permitted private schools to issue tax receipts for tuition payments for religious training even though payments were not gifts within meaning of Income Tax Act (Can.). Appel- lant fi led notice of appeal and then amended notice of appeal. Appellant brought motion for an order to amend amended notice of appeal so as to plead that by refusing to extend pol- icy to appellant, respondent thereby discriminated against appellant on religious grounds under Canadian Charter of Rights and Freedoms. Counsel for respondent argued that pro- posed amendments disclosed no reasonable cause of action. Motion allowed. Amendments presented arguable case. Appel- lant argued that policy was dis- criminatory and that appellant had suff ered disadvantage as result as result of under exclu- sions of policy. Policy seemed to benefi t religious persons over those who were not reli- gious. Appellant did not need to show likelihood of success at trial for amendments to be al- lowed. Judge was also satisfi ed with appellant's explanation PAGE 17 Subscribe to Law Times And receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE COURT DECISIONS earlug.indd 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: 11/10/09 11:20:32 AM 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. of delay in bringing motion. Fluevog v. Canada (Dec. 1, 2010, T.C.C., Margeson J., File No. 2004-3778(IT)G) 195 A.C.W.S. (3d) 657 (12 pp.). Taxation INCOME TAX Use of household worth in ascertaining ability of taxpayer to pay tax arrears was reasonable Applicant and wife were joint tenants of condominium and cottage. Applicant worked in construction industry for over 40 years and had own company which had substan- tial assets. Applicant did not make necessary tax fi lings for tax years 2000 to 2004. When fi lings were later made and T4 slips issued to applicant and wife applicant became liable for $150,000 in taxes, penal- ties and interest. Penalties were based on gross negligence in failing to fi le personal tax re- turns. Applicant made requests for relief from interest and penalties for reasons of fi nan- cial hardship and extenuating circumstances. Respondent Minister denied requests. Ap- plicant brought application for judicial review. Applicant sub- mitted that Minister erred in law in concluding that appli- cant could sell joint properties and had suffi cient funds to pay off tax debt. Application dis- missed. Minister's conclusion that applicant had resources available to address tax arrears was reasonable. In deciding whether to grant relief Minis- ter was not auditing net worth but looking at general worth of household. Use of household worth was reasonable as same was rationally connected to purposes of exercise of discre- tion to grant relief from pen- alties or interest pursuant to s. 220(3.1) of Income Tax Act (Can.) . Chwaiewsky v. Canada (Attor- ney General) (Nov. 24, 2010, F.C., Phelan J., File No. T-398- 10) 195 A.C.W.S. (3d) 884 (8 pp.). FEDERAL COURT Administrative Law NATURAL JUSTICE Board failed to give adequate reasons Applicant was Christian wom- an of Chinese origin and citizen of Indonesia. Applicant came to Canada and applied for ref- ugee status on grounds of well- founded fear of persecution in www.lawtimesnews.com home country and risk to life or of cruel and unusual pun- ishment if returned there. Ap- plicant claimed to have been subjected to discrimination in Indonesia because of religious beliefs and ethnic origin. Im- migration and Refugee Board denied refugee claim. Appli- cant brought application for judicial review. Applicant prin- cipally argued that board erred by failing to provide adequate reasons for decision. Applica- tion allowed. Board committed reviewable error in not giving adequate reasons in decision. Given systemic discrimina- tion against persons of Chinese origins and Christians in In- donesia, board was required to delve further into evidence to give reasons why board did not fi nd state of discrimination to amount to persecution. Recog- nizing that discrimination ex- isted in country and then stat- ing that same did not amount to objective persecution was allowable, but only if board as decision-maker gave some explanation as to why. Board also failed to address signifi - cant evidence in country con- dition documents that directly contradicted board's fi ndings. Matter referred to diff erently constituted board for reconsid- eration. Suryanti v. Canada (Minister of Citizenship and Immigration) (Nov. 25, 2010, F.C., Pinard J., File No. IMM-115-10) 195 A.C.W.S. (3d) 604 (11 pp.). Immigration MINISTER'S PERMIT False evidence went to heart of applicant's claim for work permit Requirements for permit to work as live-in caregiver. Ap- plicant was citizen of Ecua- dor. Applicant had great uncle in Canada who was suff ering from leukemia and other ail- ments. Applicant applied for permit to work in Canada as live-in caregiver of great uncle. Visa offi cer denied work per- mit application on ground that applicant failed to demonstrate required paid work experience or classroom training in fi eld or occupation related to live- in caregiver work. Applicant's work experience teaching English to young children. Applicant included claimed to have taken care of children with special needs as part of work. Applicant brought judi- cial review application to have visa offi cer's decision set aside since applicant had met re- quirements under Immigration and Refugee Protection Regu- lations (Can.). Application for judicial review dismissed. Applicant did not meet re- quirements under Regulations. Applicant was found to have submitted false evidence of work experience. School where applicant worked did not have students with special needs. False evidence was not minor as same went to heart of appli- cant's claim of having required training or work experience. As well applicant's paid work experience in teaching normal school children was substan- tially diff erent from and thus not transferable to experience in caring for terminally-ill el- derly persons. Visa offi cer was open to conclude on evidence that applicant had not demon- strated having either work ex- perience or classroom training required under Regulations. Mayorga v. Canada (Minister of Citizenship and Immigra- tion) (Nov. 24, 2010, F.C., Crampton J., File No. IMM- 1393-10) 195 A.C.W.S. (3d) 793 (17 pp.). ONTARIO CIVIL CASES Civil Procedure CHANGE OF SOLICITOR Cone of silence was created in timely fashion Applicant sought declaration that separation agreement was void. Respondent brought mo- tion to have applicant's lawyer removed as solicitor of record. Respondent claimed lawyer had confl ict of interest in that lawyer acted for and received confi dential information about respondent's new wife. Lawyer employed assistant to lawyer who acted for respondent at time parties entered agree- ment. Motion was dismissed. One time lawyer acted for new wife there was no confi dential information provided that had any bearing on issues in appli- cation. Lawyer took steps to prevent disclosure of any con- fi dential information known to assistant. Reasonably informed person would be satisfi ed that no use of confi dential infor- mation would occur. Cone of silence was created in timely fashion. Th ere was substantial compliance with Law Society's Rules and Canadian Bar As- sociation's Guidelines. Motion was brought as tactical weap- on. Hermant v. Secord (Dec. 8, 2010, Ont. S.C.J., Cornell J., File No. 17140/10) 195 A.C.W.S. (3d) 628 (14 pp.). Includes a FREE digital edition! Go to: www.lawtimesnews.com

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