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PAGE 16 CaseLawLaw FEDERAL COURT OF APPEAL Appeal PROCEDURE Motion to quash appeal was dismissed Motion by respondent to quash appeal on grounds that applicant waived its rights in court below. Respondent contended that ap- pellant had express written no- tice of consequences of failure to oppose respondent's application by virtue of notice of application itself which specifically stated "if you fail to oppose this applica- tion judgment may be given in your absence without further notice to you". Respondent con- tended that as applicant failed to file notice of appearance pursu- ant to Rule 305 of Federal Court Rules (Can.), appellant waived its rights and acquiesced that judgment be given in its absence. Motion dismissed. Failure to file notice of appearance under Rule 145 of does not necessarily pre- vent party from appealing deci- sion in which it was respondent if there is evidence that respon- dent did not intend to waive all its rights as party. Here court was not persuaded that appel- lant acquiesced to granting of relief in circumstances where it not have notice of relief being requested. Test of whether ap- peal had merit not guaranteed success but whether issues were arguable. Here breadth of argu- ments alone was sufficient to demonstrate that issues were arguable. SC Prodal 94 SRL v. Spirits International B.V. (Mar. 17, 2009, F.C.A., Richard C.J., Le- tourneau and Layden-Stevenson JJ.A., File No. A-193-08) Order No. 009/096/097 (5 pp.). Employment EMPLOYMENT RELATIONSHIP In characterizing work relationship Tax Court correctly relied on Civil Code of Quebec as supplement to federal law Appeal from dismissal by Tax Court of appeal against reassess- ments by Minister of National Revenue under Income Tax Act (Can.). Appellant worked as med- ical assessor with administrative tribunal in Montreal. From 1995 to 1998 he reported income as professional income and deduct- ed expenses incurred for rent, of- fice expenses and travel between Montreal and place of residence. Audit by revenue officials deter- mined that tribunal assessors had status of employees resulting in adjustment of appellant's income tax returns and disallowance of expenses claimed. Appellant ob- jected to notices of reassessments for years in question issued by Minister. Tax Court dismissed appeals and upheld assessments. Appellant argued that contract with tribunal was for supply of professional services and not one of employment. Appeal dis- missed. In characterizing work relationship as one of employ- ment Tax Court correctly relied on Civil Code of Quebec as sup- plement to federal law. Reference to Quebec civil law was required under s. 8.1 of Interpretation Act (Can.). Tax Court considered le- gal subordination required under Quebec civil law as well as other criteria used under common law as indicators of supervision in determining existence of employ- ment relationship. It committed no palpable and overriding error in analysis of legal nature of rela- tionship. Grimard v. Canada (Feb. 19, 2009, F.C.A., Letourneau, Blais and Trudel JJ.A., File No. A-39- 08) Order No. 009/096/140 (29 pp.). Employment Insurance DECISIONS OF UMPIRE Employee dismissed for alcoholism-related misconduct not disqualified from receiving benefits if both fact of alcoholism and involuntariness of conduct established Application for judicial review of decision of umpire confirming decision of board which reversed decision of commission impos- ing indefinite disqualification for regular employment benefits on respondent. Respondent's employment was terminated be- cause he failed to report for work or to contact his employer from June 3, 2006 to June 13, 2006. Evidence indicated that respon- dent had gone on drinking binge from June 3rd to June 8th and on June 9th and admitted him- self to detox program where he remained for ten days. Employer assumed respondent had aban- doned his employment. Com- mission determined that respon- dent had left his employment or been dismissed for misconduct. Board concluded that respon- dent's conduct was symptom of his alcoholism and not willful misconduct as he did not leave his employment but rather ill- ness prevented him from going to work and contacting employ- er about illness. Umpire agreed with board. Application for judicial review granted. When employee has been dismissed for alcoholism-related misconduct he or she will not be disqualified JuLy 13/20, 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. 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 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. from receiving unemployment benefits pursuant to s. 30(1) of Employment Insurance Act (Can.), if both fact of alcoholism and involuntariness of conduct in question are established. Board's finding that claimant was alco- holic was not dispositive of issue as it was not in itself sufficient to displace voluntariness of his con- sumption of alcohol and to make exclusion contained in s. 30(1) of Act inapplicable to respondent. There was no medical evidence relating to respondent's alcohol- ism or to whether circumstances in which respondent started to drink effectively made his con- sumption of alcohol at that time involuntary. Umpire committed reviewable error when he upheld board's decision as there was no evidence to support board's con- clusion that claimant's actions were not willful. Canada (Attorney General) v. Bigler (Mar. 18, 2009, F.C.A., Evans, Ryer and Trudel JJ.A., File No. A-62-08) Order No. 009/096/094 (6 pp.). Intellectual Property Industrial And TRADE-MARKS Judge erred in declaring trade-mark to be expunged Appellant registered trade-mark. After submitting fresh appli- cation it voluntarily cancelled trade-mark. Despite cancellation respondent applied to expunge trade-mark. Applications judge allowed respondent's applica- tion. Judge also declared that trade-mark was not distinctive because it was confusing with re- spondent's. Judge ordered stay of proceedings of appellant's pend- ing application and granted per- manent mandatory injunction prohibiting Registrar of Trade- marks from considering applica- tion. Appellant appealed order. Appeal allowed. Judge erred in declaring trade-mark to be ex- punged since it had been can- celled. Respondent did not also include request for stay of pro- ceedings, mandatory injunction or order of prohibition in notice of application. Reliefs were in- stead requested in respondent's memorandum of fact and law. Respondent did not serve ap- pellant with memorandum since latter did not file notice of ap- pearance. Appellant therefore had no notice of requested re- liefs other than in respect of ex- pungement of trade-mark. Un- der circumstances process was procedurally unfair. SC Prodal 94 SRL v. Spirits International B.V. (Mar. 17, 2009, F.C.A., Richard C.J., Le- tourneau and Layden-Stevenson JJ.A., File No. A-193-08) Order No. 009/092/243 (8 pp.). www.lawtimesnews.com ONTARIO CIVIL CASES Bankruptcy And Insolvency ASSIGNMENTS Application for order that assignment be removed from title to bankrupt's former half-interest in real property was dismissed Application for order that assign- ment in bankruptcy be removed from title to bankrupt's former half-interest in real property. C. acquired half-interest in prop- erty in 1986 with brother as co- tenants, but made bankruptcy assignment in 1988, thereby vesting interest in bankruptcy trustee. Trustee initially offered to sell C.'s interest to applicants but no deal concluded. Trustee took no further steps to realize on property and C. received absolute discharge in December 1988. As- signment remained on title when, in 1992, C. transferred property to applicants for nominal consid- eration, i.e. as "gift" prior to trust- ee's discharge. Applicant's desire to refinance property blocked by assignment's 1988 registration. Application denied. No evi- dence aside from double hearsay to effect that "absolute discharge in bankruptcy ended the matter" as to basis on which C. believed he was able to transfer property vested in trustee. Neither C. nor trustee provided evidence as to how C. regained right to transfer property. Applicants not duped, defrauded or misled, but merely discovering that gift not as "large or complete as they thought". No entitlement to relief in law or equity. Collins Estate (Re) (Apr. 17, 2009, Ont. S.C.J., Registrar Nettie, File No. 31-228607) Order No. 009/110/091 (8 pp.). Civil Procedure CLASS ACTIONS Action arising from dissemination of Legionella pheumophila was certified Plaintiffs claimed city was neg- ligent and in breach of contract because city failed to prevent growth of Legionella in cooling tower resulting in dissemination of Legionella pheumophila into Home for Aged and neighbour- hood. Class members were in- fected with Legionaires' disease or Pontiac Fever and became ill or died. Plaintiffs claimed Ontario was negligent because it failed to use correct test on urine samples to identify cause of outbreak in timely manner. Plaintiffs brought motion to certify proceeding. Motion was allowed. Certifica- tion order would issue on court being satisfied of concern raised with respect to provision in liti- gation plan. Pleading of declara- tion that defendants were negli- gent was superfluous. Claim for declaration for vicarious liability in damages was not duplicative but was not well pleaded. Leave to amend was granted. Pleadings made adequate claim for breach of contract for city and Ontario. Claim for negligence against On- tario was adequately pleaded. Proposed class definition was accepted subject to comments. Plaintiffs satisfied common is- sues criterion. Class proceeding was fair, efficient and manageable method of advancing claim. Class proceeding was preferable proce- dure to resolve claims. Represen- tative plaintiffs were appointed. Glover v. Toronto (City) (Apr. 15, 2009, Ont. S.C.J., Lax J., File No. 05-CV-299031CP) Order No. 009/110/086 (30 pp.). DEFAULT Judge at undefended trial not obliged to accept truth of pleaded facts that were inconsistent with plaintiff 's sworn evidence In amended statement of claim plaintiff asserted he sold Persian carpets to defendant P. on consign- ment basis without receiving pay- ment in full as latter used proceeds of sale to buy condominium for defendant A.. Plaintiff sought to hold defendants liable for breach of trust, conversion and unjust en- richment. Defendants were noted in default for failing to deliver statements of defence. Plaintiff moved for judgment pursuant to rule 19.05 of Rules of Civil Pro- cedure (Ont.). Plaintiff submitted affidavit deposing facts relating to liability and not just damages. Judgment entered against defen- dant P. for amount of $67,500 but claim against defendant A. dismissed. Judge considered af- fidavit evidence as to liability es- pecially in view of inconsistencies with plaintiff's pleading. Judge at undefended trial not obliged to accept truth of pleaded facts that were inconsistent with plaintiff's sworn evidence. While plaintiff alleged consignment arrangement his evidence established outright sale of goods. Facts pleaded and affidavit evidence also contra- dicted claims based on participa- tion in breach of trust, conversion and unjust enrichment. Carpets sold were not "trust property". Plaintiff also gave up possession of carpets in exchange for promise by defendant P. to pay agreed price. Plaintiff entitled to judgment for $67,500 owing under arrange- ment with defendant P. but defen- dant A. not liable. Salimijazi v. Pakjou (Apr. 17, 2009, Ont. S.C.J., Strathy J., File No. 07-CV-337483PD1) Order No. 009/110/061 (16 pp.).