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 OF APPEAL Employment PUBLIC SERVICE Arbitration Board decision not founded on medical evidence Applicant appealed from decision rendered by Arbitration Board af- firming that employee's conduct was involuntary. Applicant affirmed that absences were not justified on medical grounds and that employee was warned several times of pos- sible consequences of persistent ab- senteeism. Arbitration Board con- cluded that absences were justified on grounds of major depression. Appeal allowed. Court affirmed that despite depression, doctor or- dered return to work four days aſter diagnosis. Arbitration Board deci- sion was not founded on medical evidence and should be reversed. Canada (Procureur general) v. Bergeron (Oct. 17, 2011, F.C.A., Blais C.J., Pelletier and Mainville JJ.A., File No. A-440-10) Reasons in French. 208 A.C.W.S (3d) 725 (10 pp.). Labour Relations CERTIFICATION Security personnel essential to ensuring detention of people in facility Company was large security com- pany that provided security per- sonnel to clients on contract. Most of the jobs held by company's em- ployees were governed by provin- cial legislation. Some jobs held by company employees such as those working in airport security were governed by federal legislation. Company obtained contract to pro- vide security personnel to immigra- tion detention centre. Union sought certification to represent company's security personnel at detention cen- tre. Conseil canadien des relations industrielles dismissed application for certification since it ruled that it did not have jurisdiction to hear ap- plication since these employees fell under provincial jurisdiction. Re- view panel at Conseil upheld deci- sion. Union brought application for judicial review. Application allowed. Standard of review was correctness. There was no question that deten- tion centre itself was under federal jurisdiction. Issue was whether job of security personnel had essential or fundamental link to operation of federal facility. Security personnel were essential to ensuring detention of people in the facility in accor- dance with federal law. Detention would not be possible without ser- vices of security personnel. Conseil committed error by concluding that their work was non-essential sim- ply due to fact that detainees were mostly non-violent. Fact that con- tract was of specified duration did not change essential nature of work. Syndicat des Agents de Securite Gar- da, Section CPI-CSN v. Corp. de Se- curite Garda Canada (Nov. 4, 2011, F.C.A., Noel, Trudel and Mainville JJ.A., File No. A-471-10) Reasons in French. 208 A.C.W.S. (3d) 849 (40 pp.). FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Board's reasons inadequate and not intelligible Board denied application for mem- bership in Nunatsiavut Govern- ment pursuant to Labrador Inuit Land Claims Agreement. Applicant sought declaratory relief restoring applicant's rights as beneficiary of agreement. Respondent conceded applicant was not afforded oppor- tunity to fully present case to board These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. in appeal. Respondent stated there was evidence before court that was not before board that may have af- fected decision had applicant been given opportunity to present it. Application for judicial review was allowed. Matter was referred back to board to afford applicant op- portunity to adduce all evidence. In addition to breach of procedural fairness, board's reasons were inad- equate and not intelligible. Mugford v. Nunatsiavut (Oct. 20, 2011, F.C., Kelen J., File No. T-1407- 10) 208 A.C.W.S. (3d) 634 (15 pp.). Industrial And Intellectual Property PATENTS Second patent did not set out support for alleged clinical superiority Action by patentee against com- petitor for relief for patent infringe- ment. Patentee was pharmaceutical company involved in developing medications for treatment of schizo- phrenia. Earliest medications used for schizophrenia tended to pro- duce extra-pyramidal symptoms ("EPS") such as restlessness, stiff- ness, twitching, and facial contor- tions. Newer drug called clozapine did not induce EPS but sometimes resulted in cessation of production of white blood cells. Patentee sought to produce safer version of clozap- ine. Patentee synthesized variant of clozapine and obtained patent cov- ering 15 trillion compounds with similar chemical structure. Patentee then sought to produce some of these compounds for medicinal use and eventually found olanzapine to be effective. Patentee was granted second patent that covered only olanzapine. Competitor marketed generic version of olanzapine. Ac- tion dismissed. Competitor failed to establish insufficiency of disclosure but did establish lack of utility. Sec- ond patent was selection patent and therefore had to promise something more than was promised in first patent. Second patent proclaimed number of advantageous qualities for olanzapine when compared to other compounds covered by first patent and to other known medica- tions used in treatment of schizo- phrenia. Evidence available at time patent application was filed did not demonstrate olanzapine could meet promise of second patent. Evidence showed that patentee could not even draw prima facie reasonable inference from information avail- able at time of patent application that olanzapine could treat schizo- phrenia patients significantly bet- ter, and with fewer side effects, than other known antipsychotic drugs. One particular concern, in light of chronic nature of schizophrenia, was lack of long-term studies. Sec- ond patent had not even set out line of reasoning to support its alleged clinical superiority in treatment of schizophrenia with better side effect profile. Eli Lilly Canada Inc. v. Novopharm Ltd. (Nov. 10, 2011, F.C., O'Reilly J., File No. T-1048-07) 208 A.C.W.S. (3d) 840 (102 pp.). TAX COURT OF CANADA Employment Insurance ENTITLEMENT Working contract was merely fiction Appellant sought revision of deci- sion affirming she was not entitled to employment insurance. Minister affirmed that applicant was mar- ried for 32 years with payer and declaration produced was not reli- able. Appellant worked for husband voluntarily before and declaration on hours worked had sole purpose to entitle appellant to employment insurance. Appeal not allowed. Cir- cumstances presented by appellant were unreliable and contradictory leading to belief that working con- tract was merely fiction. Gauthier v. M.N.R. (Oct. 18, 2011, T.C.C., Tardif J., File No. 2010- 1263(EI)) Reasons in French. 208 A.C.W.S. (3d) 731 (17 pp.). ONTARIO CIVIL CASES Civil Procedure COST Absent protocol, costs to be awarded on partial indemnity basis Applications of GTAA for aircraſt seizures and detention orders for amounts owed by airline were al- lowed. Motions by lessors seeking declarations that none of airport authorities were entitled to seize or detain aircraſt were dismissed. Un- der protocol negotiated by parties prior to hearing Airport Authori- ties and NAV Canada were entitled to be indemnified for payment of reasonable legal costs incurred with successful seizure applications sub- ject to assessment. Protocol used phrase "reasonable legal costs, as assessed" which did not unequivo- cally express lessors would be li- able for costs on substantial or full indemnity scale. Absent protocol costs were to be awarded on par- tial indemnity basis. Costs were fixed on partial indemnity basis in amount of $277,925 inclusive of disbursements and HST. Skyservice Airlines Inc. (Re) (Oct. 27, 2011, Ont. S.C.J. (Comm. List), Morawetz J., File No. CV-10-8647- 00CL) 208 A.C.W.S. (3d) 663 (7 pp.). Family Law DOMESTIC CONTRACTS Exchange of correspondence sufficient to indicate intention to be bound Parties were not married. Applicant sought payment out of proceeds of sale of home parties lived in. Ap- plicant purchased home with own funds. Title was put in joint names. ONTARIO LAWYER'S PHONE BOOK 2012 YOUR MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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