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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Aboriginal Peoples BANDS Federal Court had no jurisdiction to entertain action respecting removal of appellant's name from register as status Indian Federal Court had no jurisdic- tion to entertain action in respect of removal of appellant's name from register as status Indian by operation of s. 17(6) of Fed- eral Courts Act (Can.) ("FCA"), and s. 14.3 of Indian Act (Can.) ("IA"). Motions judge correctly stated that s. 17(6) of FCA had effect of removing Federal Court's jurisdiction in circum- stances contemplated by s. 14.2 and s. 14.3 of IA. Proper avenue for appellant was to avail herself of right to protest within three- year limitation period prescribed by s. 14.2(1) of IA that ended in September 2001, and further, of statutory right of appeal to Al- berta Court of Queen's Bench pursuant to s. 14.1(1) and (5) of IA. Appellant had now exercised that right and those proceedings had been stayed pending deci- sion from registrar following ap- pellant's request for registration as status Indian under IA. Callihoo v. Canada (Minister of Indian Affairs and Northern Development) (Nov. 25, 2008, F.C.A., Linden, Ryer and Tru- del JJ.A., File No. A-540-04) Appeal from 134 A.C.W.S. (3d) 353 dismissed. Order No. 009/168/077 (8 pp.). Civil Procedure COMMENCEMENT OF PROCEEDINGS Striking out of entire statement of claim was extreme remedy Claim for relief sought series of declarations which essentially fo- cus on alleged aboriginal rights, treaty rights and aboriginal title rights which plaintiffs allegedly hold in Labrador. Application judge erred in granting Attor- ney General of Newfoundland and Labrador's motion to strike out amended statement of claim in its entirety without leave to amend. Federal Court has no jurisdiction to make declara- tions against provincial Crown. However, striking out of entire statement of claim was extreme remedy in case in which court's concurrent jurisdiction over some aspects of dispute had been established. Appropriate remedy would be to stay proceedings and allow dispute to be pleaded before Supreme Court of New- foundland and Labrador. Vollant v. Canada (June 3, 2009, F.C.A., Decary, Noel and Blais JJ.A., File No. A-365-08) Appeal from 168 A.C.W.S. (3d) 924 al- lowed. Order No. 009/183/004 (12 pp.). Constitutional Law DISTRIBUTION OF LEGISLATIVE AUTHORITY Section 8 of Patented Medicines (Notice of Compliance) Regulations (Can.) is intra vires Application judge correctly held that s. 8 of Patented Medicines (Notice of Compliance) Regula- tions (Can.), is intra vires Patent Act (Can.), within competence of Federal Court to hear and de- termine action brought there un- der and within constitutional au- thority of Parliament of Canada. Application judge also correctly concluded that generic manufac- turer A. was not entitled to dis- gorgement of profits earned by innovator manufacturer M., but was limited to claim for damages or its lost profits. Apotex Inc. v. Merck & Co. (June 4, 2009, F.C.A., Noel, Layden-Stevenson and Ryer JJ.A., File No. A-571-08; A-580- 08) Appeal from 172 A.C.W.S. (3d) 484, 70 C.P.R. (4th) 297 was allowed in part. Order No. 009/183/007 (49 pp.). Social Welfare OLD AGE SECURITY Minister was correct in determining respondent's guaranteed income supplement entitlement Respondent was entitled to guaranteed income supplement ("GIS") under Old Age Secu- rity Act (Can.). Respondent was grain farmer. Respondent paid $31,000 expenses on January 5, 2005 and could not deduct expenses in computing 2004 income. Respondent's GIS was determined to be $111 less than for prior period. Respondent's appeal was allowed. Tax Court concluded amount of GIS pay- able to pensioner for particular period did not necessarily have to be based on amount of in- come as actually filed for prior year under Income Tax Act (Can.). Crown's appeal was al- lowed. Minister was correct in law in determining respondent's GIS entitlement on basis that $31,000 expenses could not be deducted in computing respon- dent's 2004 income. Tax Court Judge erred in vacating Minis- ter's decision. Canada v. Dechant (June 11, 2009, F.C.A., Sharlow, Ryer and Trudel JJ.A., File No. A-497- 08) Order No. 009/175/049 (9 pp.). August 24/31, 2009 • LAw times COURT DECISIONS ainmaker_LT_June2_08.indd 1 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. 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: 5/28/08 10:43:29 AM Single or multiple copies of the full text of any case digested in this issue can be obtained by calling CaseLaw's photocopy department at (905) 841-6472, or 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. FEDERAL COURT Immigration VISITORS Applicant was not misled about criteria respecting live-in caregivers Applicant was denied work per- mit. Applicant argued she was misled by fact Quebec authorities had different criteria than those of s. 112 of Immigration and Refugee Protection Regulations (Can.), with respect to live-in caregivers. Application for judicial review was dismissed. Officer's decision was reasonable. Assum- ing applicant and employer were misled by Quebec authorities was matter between them and prov- ince and did not confer right to have application processed from within Canada on applicant. Ap- plicant was never misled by Ca- nadian authorities. Applicant did not show officer ignored evidence or that factual assessment was un- reasonable. Lynch v. Canada (Minister of Citizenship and Immigration) (June 11, 2009, F.C., Shore J., File No. IMM-5197-08) Order No. 009/176/065 (14 pp.). Intellectual Property Industrial And COPYRIGHT Registration ordered amended to include pseudonym Applicant was author of book. Copyright was registered under applicant's legal name contrary to respondent's instructions. Officer elected to amend reg- istration to applicant's pseud- onym but registration was again amended to reflect applicant's legal name. Applicant sought or- der permitting registration to be amended to include applicant's pseudonym. Applicant feared retribution from people in book who could be identified through events in book. Registration was ordered amended as requested. Jacobs v. Canada (Attorney Gen- eral) (June 10, 2009, F.C., Be- audry J., File No. T-1709-08) Or- der No. 009/176/060 (11 pp.). ONTARIO CIVIL CASES Civil Procedure CHANGE OF SOLICITOR There would be appearance of conflict if lawyer represented applicant Applicant's counsel knew respon- dent's father. Applicant's counsel had three conversations with re- spondent's father about difficult www.lawtimesnews.com relationship between parties. Ap- plicant's counsel gave advise to respondent's father. Respondent and father were never client at law firm of applicant's counsel. Lawyer became applicant's coun- sel. Respondent brought mo- tion to have applicant's solicitor of record removed. Motion was allowed. Father acted as respon- dent's agent in speaking with applicant's counsel. Respondent was in same position as prospec- tive client. Applicant's lawyer did not prove confidential informa- tion was not received. Reason- ably informed person would not be satisfied no confidential infor- mation would be used if lawyer represented applicant in family law litigation. There would be appearance of conflict if lawyer represented applicant. Powers v. Zuro (June 22, 2009, Ont. S.C.J., Aitken J., File No. 07-FL-1734) Order No. 009/174/091 (5 pp.). JURY NOTICE Jury notice struck where case primarily involved matters of law Motion by plaintiffs in third party action, arising from motor vehicle accident, to strike jury notice filed by defendant insurer W.. Third party action claimed declaratory relief against W. as to validity of policy and entitlement to defence. Motion allowed, and jury notice struck. The "pith and substance" of plaintiff's claim was not for declaratory relief for pur- poses of s. 108(2) of Courts of Justice Act (Ont.), so as to require a judge alone, but for purpose of obtaining executory or coercive relief, i.e. entitlement to benefits under contract, involving actual findings of disability and physi- cal condition. Case primarily in- volved matters of law, given facts of knowledge and non-disclosure conceded by plaintiffs. MacNeil (Litigation Guard- ian of) v. Bryan (June 4, 2009, Ont. S.C.J., Howden J., File No. 02-B5245) Order No. 009/160/003 (8 pp.). Contempt Of Court GROUNDS Father disobeyed access orders deliberately and wilfully Mother was awarded sole custody of child with access to father. Fa- ther allowed child to stay with him in his farm on number of oc- casions when child was supposed to be in care of mother pursuant to access orders. Mother brought motion for contempt order against father for failure to abide by access orders. Motion allowed. Access orders were clear and un- equivocal as to access regime in place. Father understood on oc- casions in question that child was supposed to be with mother. Father disobeyed access orders de- liberately and wilfully. He failed to take steps to ensure that access schedule in orders was complied with. Evidence belied father's as- sertion that he tried to convince child to return to mother's home. Child was even rewarded for coming to farm instead of staying at mother's home. Father found to have acted in contempt of court beyond reasonable doubt. Order made for incarceration of father for seven days. Operation of order was however suspended on condition that father abide by access schedule. Stuyt v. Stuyt (June 12, 2009, Ont. S.C.J., Aitken J., File No. 05-FL-1459-1) Order No. 009/167/016 (12 pp.). Contracts INTERPRETATION Phrase "prerequisite to obtaining the registration" in agreement of purchase and sale gave rise to two possible meanings Appellant W Ltd. purchased 88 lots developed by respondent H Inc.. Agreement of Purchase and Sale entered into by parties provided that H Inc. shall pay development charges as "prerequisite to obtain- ing the registration of the Plan of Subdivision". H Inc. paid compo- nents of charges due immediately under agreements with Regional Municipality of York and City of Vaughan. Plan of Subdivision was registered. H Inc. paid outstand- ing charges in respect of 69 of W Ltd.'s lots. H Inc. however refused to pay charges on remaining lots. Judge concluded H Inc. was not required to pay charges. W Ltd. appealed order. Appeal allowed. Phrase "prerequisite to obtaining the registration" in Agreement of Purchase and Sale gave rise to two possible meanings. Accord- ing to H Inc. phrase meant that payments must be made as tem- poral condition precedent to reg- istration of plan. W Ltd. asserted that phrase referred to obligation to pay on part of H Inc. permit- ting payment both before and after registration. Interpretation advanced by W Ltd. was preferred as it was consistent with language of Agreement of Purchase and Sale when read as whole. Order set aside and H Inc. held liable to make contested payments. Juol Sands Inc. v. Humber- plex Developments Inc. (June 11, 2009, Ont. C.A., Winkler C.J.O., Goudge and Feldman JJ.A., File No. C49487) Order No. 009/166/141 (10 pp.). Damages PERSONAL INJURIES To permit plaintiff to recover any amount from first defendant would result in double recovery

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