Law Times

Law Times • august 24, 2015 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Courts JURISDICTION Provincial superior courts have jurisdiction to address valid- ity of child support guidelines where doing so is necessary step in resolving case other- wise properly before them Appellants brought judicial review application in federal court seeking declaration that federal child support guidelines unlawful as not authorized by s. 26.1(2) of Divorce Act. Ap- plication judge held that given minor role Federal Court plays in issues under act and breadth of jurisdiction and expertise of provincial superior courts in matters related to divorce and child support, Federal Court was not appropriate forum in which to address validity of guidelines. Federal Court up- held application judge's decision and appellants' further appeal dismissed. Provincial superior courts can determine whether guidelines ultra vires and can decline to apply them if doing so is necessary step in resolving matters before them. Judicial review is discretionary; even if applicant makes out case for re- view on merits, reviewing court retains overriding discretion to refuse relief. Declarations of rights are similarly discretion- ary. Federal Court judges' dis- cretion in determining whether judicial review should be under- taken entitled to deference. One of discretionary grounds for refusing to undertake judicial review is that there is adequate alternative. Court should con- sider suitability and appropri- ateness of judicial review. Fed- eral Court has discretion to rule on legality of guidelines but it declined to exercise that discre- tion. Alternative does not need to provide identical procedures or relief to be adequate. Deter- mination of whether guidelines are based, as required to be, on s. 26.1(2) of act, will engage family law expertise in relation to, inter alia, nature and extent of obliga- tion to maintain children and how relative abilities of parents to do so should be assessed, an area of law entrusted to provin- cial superior courts. It would be curious if legality of central as- pect of regime were determined by federal courts which have virtually no jurisdiction with respect to family law matters. In addition, ruling in Federal Court would not be binding on provincial superior courts. Judi- cial review proceedings exclude direct adversarial participation; adjudicating issue in context of act or child support proceed- ings would ensure full partici- pation of parties. Judicial review in Federal Court is manifestly inappropriate; provincial supe- rior courts have jurisdiction to address validity of guidelines where doing so is necessary step in resolving case otherwise properly before them. Strickland v. Canada (At- torney General) (Jul. 9, 2015, S.C.C., McLachlin C.J.C., Abel- la J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 35808) Decision at 244 A.C.W.S. (3d) 341 was af- firmed. 254 A.C.W.S. (3d) 838. FEDERAL COURT OF APPEAL Appeal MOOTNESS Whether minister could be forced to process permanent residence applications was no longer live controversy Appellants applied for orders of mandamus to compel minister of citizenship and immigration to process applications for per- manent residence under federal immigrant investor program under Immigration and Refu- gee Protection Act that had not been processed as fast as ap- plicants wanted. Applications were dismissed. Appellants ap- pealed. Appeals dismissed. Ap- peals were moot. Section 87.5 of act had come into force and its effect was to terminate all of applications of appellants in ap- peals. Controversy was whether minister could be compelled by mandamus to process ap- plications that were outstand- ing at time that mandamus applications were made to, and heard by, judges. Enactment of s. 87.5 terminated all of applica- tions under program and issue of whether minister could be forced to process applications was no longer live controversy. Kearney v. Canada (Minister of Citizenship and Immigra- tion) (Jun. 15, 2015, F.C.A., C. Michael Ryer J.A., Webb J.A., and Rennie J.A., File No. A-117- 14) Decision at 237 A.C.W.S. (3d) 744 was affirmed. 254 A.C.W.S. (3d) 919. Industrial and Intellectual Property TRADEMARKS Judge did not err in finding that board could reasonably find likelihood of confusion Appellant was Chinese bakery and food products company that applied to register trade- marks. Respondent opposed applications on grounds of con- fusion with its registered trade- marks. Trademarks opposition board determined that appel- lant had not discharged burden of demonstrating, on balance of probabilities, that there was no reasonable likelihood of confu- sion with respondent's trade- marks. Board allowed grounds of opposition raised by respon- dent based on s. 12(1)(d) of Trademarks Act for overlapping wares only. Board found that appellant failed to meet burden under s. 16(3) of act to establish no likelihood of confusion with respondent's trademarks. Board found that respondent met its burden under s. 38(2)(d) in es- tablishing that its trademarks had become sufficiently known to negate distinctiveness of ap- pellant's trademarks. Appellant appealed. Judge determined that new evidence filed by ap- pellant in form of affidavit was inadmissible on basis that when it was sworn it was not accom- panied by certificate acknowl- edging that expert had read code of conduct for expert wit- nesses. Judge found that appel- lant had not discharged burden to show, on balance of prob- abilities, that there would be no confusion with existing regis- tered trademarks of respondent. Judge concluded that board's decisions were both reason- able and correct. Appellant ap- pealed. Appeal dismissed. Judge erred in finding affidavit to be inadmissible in circumstances. However, affidavit was not suf- ficient to overcome evidence put forward by respondent be- fore board. Affidavit was not significant and would not have materially affected board's de- cisions. Affidavit should be given little weight and de novo analysis was not warranted. As affidavit would not have materi- ally changed board's decisions, appellant's arguments remained unsupported by evidence. Ap- pellant had not identified any basis upon which judge's con- clusion should be disturbed. Judge did not err in finding that board could reasonably con- clude that there was likelihood of confusion in circumstances. Appellant was not entitled to register trademarks, as they were not distinctive. Saint Honore Cake Shop Ltd. v. Cheung's Bakery Products Ltd. (Jan. 20, 2015, F.C.A., M. Nadon J.A., Wyman W. Webb J.A., and Richard Boivin J.A., File No. A-344-13) Decision at 232 A.C.W.S. (3d) 767 was af- firmed. 254 A.C.W.S. (3d) 859. Labour Relations COLLECTIVE AGREEMENT Arbitrator erred by substitut- ing its own interpretation of "employees in similar situation" Employer had offered eight- hour overtime shifts to em- ployee, D.D., who was available for overtime at rate of time and one-half, rather than to grievor, who was available for overtime at rate of double. D.D. had been offered 236.75 hours of over- time over 2010-11 fiscal year, while grievor had not been of- fered any overtime hours dur- ing that same period of time. Union for correctional officers successfully filed grievance al- leging that employer had denied grievor equitable distribution of overtime over 2010-11 fis- cal year. Employer successfully brought application for judicial review. Grievor appealed. Ap- peal allowed; matter referred back to arbitrator. Arbitrator erred by substituting its own interpretation of "employees in similar situation." No details were provided for arbitrator to make comparison described in Canada (Attorney General) v. Bucholtz (2011), 216 A.C.W.S. (3d) 652 (F.C.). In absence of any indication on comparison sub- ject in this decision or in arbitral jurisprudence, it was not pos- sible to conclude that decision was reasonable without defin- ing "employees in similar situa- tion" and without determining 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. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. The annual Canadian Lawyer Corporate Counsel Survey. canadianlawyermag.com/surveys In-house counsel – weigh in on your relationship with external law firms, alternative fee arrangements, and more. DEADLINE SEPTEMBER 14 LEGAL OPINIONS WANTED! Untitled-4 1 2015-08-20 8:39 AM

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