Law Times

PAGE 14 CASELAW 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. FEDERAL COURT Administrative Law JUDICIAL REVIEW Allowing applicant to avoid 30-day filing requirement would open door to multitude of similar applications Application for judicial review of three decisions by Minister that rejected applicant's request for notice of compliance for Omeprazole Magnesium tablets. Minister argued application was out of time. Applicant brought appli- cation on August 26, 2010. First impugned decision was revocation of approvability status in 2008, sec- ond was issuance of notice of com- pliance ("NOC") withdrawal letter in February 2009 and third was July 27, 2009, denial of reconsidera- tion request of February decision. Applicant argued it had vested inter- est in notice of compliance since 2003 and Minister's actions were unreasonable and unfair. Applicant accused Minister of historically unfair treatment. Application dis- missed. Allowing applicant to avoid 30-day filing requirement for judi- cial review applications would open door to multitude of similar belated applications, effectively extinguish- ing the requirement. Applicant's position was attempt to avoid time requirements that could only be overcome by meritorious motion to extend time. Applications were brought 19, 17 and 12 months after impugned decision, so were clearly very late. Applicant claimed it was awaiting access to informa- tion request but did not explain its four-month delay after receiving all information. Furthermore, while access to information request may have produced some new infor- mation, sophisticated litigant like application could have brought application well before receiving all information. Applicant's claim it had vested interest in NOC was untenable. Applicant based claim on Minister's 2003 letter advising applicant the examination of its tablets had been completed subject to application being placed on pat- ent hold. Until an NOC was issued, proponent had no vested interest. There was no legal significance to application being placed on patent hold. Minister was fully entitled to revisit scientific issues at any point up to issuance of NOC. Applicant to pay $10,000 costs to Minister, as agreed upon by parties. Apotex Inc. v. Canada (Minister of Health) (Nov. 14, 2011, F.C., Barnes J., File No. T-1372-10) 208 A.C.W.S. (3d) 567 (18 pp.). ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Defendant had no right to inquire into legal advice given to plaintiff by lawyer This was appeal from motions judge's decision ordering appellant law firm to indemnify plaintiffs for costs awards made in proceedings. In underlying action plaintiffs' cer- tification motion was dismissed. Costs of $125,000 were awarded to respondent Attorney General ("AG"). Plaintiffs unsuccessfully appealed to Court of Appeal and AG was awarded costs of $40,000. Application for leave to appeal to Supreme Court of Canada was dis- missed and AG was awarded costs of $1,086. AG was informed that plaintiffs were impecunious. On AG's motion motions judge ordered appellant to indemnify plaintiffs for costs awards, including costs award- ed to AG, on basis that plaintiffs had not given appellant authority to bring action because appellant had not properly advised plaintiffs of potential exposure to costs. Appeal allowed. Defendant had no right to inquire into legal advice given to plaintiff by lawyer, as that was matter that was between solicitor These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. and client. Proceedings were com- menced with plaintiffs' consent. Even if plaintiffs did not understand full cost implications that could not invalidate or nullify authority they gave to counsel to commence pro- ceedings. Motions judge ordered appellant to pay respondent's costs for breach of implied warranty of authority. However, if breach of warranty of authority applied here it could not provide respondent with recoverable damages. Plaintiffs were impecunious. To award AG costs now would put AG in better position than if action proceeded with authority and failed. Motions judge created unnecessary multi- plicity of proceedings. Attis v. Ontario (Minister of Health) (Oct. 31, 2011, Ont. C.A., Sharpe, Epstein JJ.A. and Cunningham A.C.J. (ad hoc), File No. C52776) Decision at 323 D.L.R. (4th) 309, 192 A.C.W.S. (3d) 745 was reversed. 208 A.C.W.S. (3d) 476 (10 pp.). INTERLOCUTORY MOTION Delivery of notice to attorn appeared to be deliberate attempt to undermine plaintiff's claims Motion by plaintiff for order that the notice to attorn sent to ten- ant by respondents was improper and invalid; order requiring tenant to continue to make all rent pay- ments in care of trustee, in accor- dance with the prevailing court order, and that tenant be ordered not to adhere to the rent attorn- ment demand; order requiring respondents to forthwith pay back any payments received from tenant through notice to attorn, with inter- est; order that interest payments on second mortgage were to end as of February 10, 2011; order that inter- est payments received by the second mortgagee after February 2, 2011, be returned forthwith, with interest; order that second mortgagee's rent assignment agreement be declared null and void, and removed forth- with from title to the property; order that the company pay, forth- with, invoices totalling $15,904.50 rendered for accounting services; that the court take appropriate measures to ensure that all existing court orders were complied with; determination respondents were in violation of existing court orders and in contempt; leave for motion to proceed and costs on substantial indemnity basis. Catalyst to motion was notice to attorn delivered after matter had been set down for trial. Motion allowed in part. Validity of assignments of rent was triable issue and notice to attorn depended on it, so requests to have notice and agreement declared invalid were dismissed. Parties to account- ing services contract were not par- ties to this action, so request for invoice payment dismissed. Relief sought with respect to interest on mortgages had already been previ- ously decided in order that sought to preserve status quo until trial, so request denied. Rent assign- ment agreement appeared to have been authorized by plaintiff and no order specifically barred provision of notice to attorn, so contempt motion denied. Delivery of notice to attorn did appear, however, to be deliberate attempt to undermine plaintiff 's claims and had effect of diverting money, so defendant was directed to notify tenant it was withdrawing notice to attorn and all payments were to be made to trustee. Defendant not to take any steps to enforce assignment of rents pending trial. Trustee was to con- tinue to make interest payments on the second mortgage until trial. Plaintiff was to provide the written undertaking for damages. Grant v. Saks (Oct. 12, 2011, Ont. S.C.J., Healey J., File No. 09-0891) 208 A.C.W.S. (3d) 481 (7 pp.). SEVERANCE Consolidation order not a conflicting decision as it was only a difference in outcome Application by mother for leave to appeal trial's judge's order that father's bankruptcy file be tried in CANADIAN LAW LIST 2012 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: • an up-to-date alphabetical listing of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; • contact information for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. MORE THAN A PHONE BOOK Hardbound • Published February each year • On subscription $149 • L88804-571-26084 One-time purchase $165 • L88804-571 • ISSN 0084-8573 Prices subject to change without notice,to applicable taxes and shipping & handling. Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation www.lawtimesnews.com CLL - 1/4 pg - 5X.indd 1 1/20/12 10:55 AM CANADIAN LAW LIST bankruptcy court rather than fam- ily court. Parties separated in 1990 after six years of marriage and there had been innumerable proceedings ever since. Father made assignment in 1998, when equalization dam- ages were outstanding. Mother challenged father's bankruptcy. In 2000, support decision found father had been diverting income and imputed him with $175,000 at time of bankruptcy. Consolidation of bankruptcy and outstanding family issues was ordered, but trial judge made impugned order after mistrial. Trial judge granted father's request to sever bankruptcy mat- ter, noting father had been undis- charged bankrupt for 12 years. Mother argued trial judge's deci- sion conflicted with consolidation order and if matters were not con- solidated, she would have to prove her claim twice. Application dis- missed. Consolidation order was not a conflicting decision as it was only a difference in outcome, not principle. Parties had agreed to new trial date and granting leave would cause further delays. While overlap- ping issues may be present, parties would be bound by whatever court decided issues first. There were no reasons to doubt correctness of trial judge's decision. Consolidation was ordered more than three years ago and trial judge was in best position to manage the trial. Pirner v. Pirner (Sep. 23, 2011, Ont. S.C.J. (Div. Ct.), Hoy J., File No. DC-11-00000057-00ML) 208 A.C.W.S. (3d) 444 (5 pp.). TAX COURT OF CANADA Taxation INCOME TAX Taxpayer did not disprove assumptions by Minister Appeals by taxpayer from assess- ment by Minister under Income Tax Act (Can.). Taxpayer claimed he operated paralegal business. February 13, 2012 • Law Times

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