Law Times

Law Times • June 29/JuLy 6, 2009 CaseLawLaw TAX COURT OF CANADA Civil Procedure CHANGE OF SOLICITOR There was disqualifying conflict of interest in relation to legal assistant but not lawyer Appellant applied to remove Department of Justice ("DOJ") as counsel in two appeals. Lawyer employed by DOJ had involve- ment in private practice with one of matters. Lawyer did not have involvement with matters at DOJ. Legal assistant employed by DOJ had prior involvement with matters while working for law firm. Legal assistant worked on same matters at DOJ. DOJ did not place "Chinese Wall". There was no disqualifying con- flict of interest in relation to lawyer. There was no reason for "Chinese Wall" where lawyer did not work in Edmonton or in tax section. Public would not have real concern confidential information would be used to prejudice Intellectual Property FEDERAL COURT Industrial And PATENTS Allegation as to invalidity for lack of utility was justified appellant by DOJ. With respect to legal assistant there was disqualifying conflict of interest. Public might have concern relevant confidential information might be passed by legal assistant to lawyers working on files at DOJ and be poten- tially used to prejudice of appel- lant. Legal assistant and lawyer at DOJ who had worked on Tax Court appeals were disqualified. There was no necessity to dis- qualify entire Edmonton office of DOJ. Williamson v. Canada (Apr. 23, 2009, T.C.C., Woods J.T.C.C., File No. 2000-2382(IT)G; 2002-1965(IT)G) Order No. 009/120/089 (15 pp.). Application to prohibit Minister from issuing notice of compli- ance to respondent for generic version of applicant's medica- tion. Respondent notified appli- cant that it intended to market generic version of applicant's drug used to treat and prevent osteoporosis. Respondent's alle- gation of non-infringement of patent was justified. Application dismissed. Respondent's allega- tion as to invalidity for lack of utility was justified. Patents were invalid. Description of patents failed to establish that claimed particle size range had promised utility consistent in absorption/bioavailability. Claimed particle size could not have been soundly predicted based on description. Eli Lilly Canada Inc. v. Novopharm Ltd. (Mar. 19, 2009, F.C., Hughes J., File No. T-1562-07) Order No. 009/096/111 (49 pp.). Proceeds Of Crime FORFEITURE Reasonably open to Minister's delegate to confirm forfeiture Application for judicial review of decision of Minister's del- egate pursuant to ss. 27 and 29 of Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17. Decision confirmed seizure and forfeiture of funds without PAGE 17 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. reduction. Applicant, a citizen of New Zealand, had responded to question from American cus- toms authorities at Vancouver International Airport that he was not carrying funds in excess of $10,000 CDN.. Inspection of baggage by American and Canadian customs authorities. Applicant found to have secret- ed in baggage and on person moneys amounting to $70,000 CDN.. Customs officials deter- mined there were reasonable grounds to suspect currency seized was proceeds of crime or funds for terrorist financ- ing. Application dismissed. Applicant had failed to provide any legitimate documentary evi- dence or information to dem- onstrate that funds legitimately obtained. Reasonably open to Minister's delegate to confirm forfeiture. Ayobie v. Canada (Minister of Public Safety and Emergency Preparedness) (Mar. 16, 2009, F.C., Gibson J., File No. T-1117- 08) Order No. 009/096/106 (10 pp.). FEDERAL COURT OF APPEAL Civil Procedure TRIAL Request for retrial was denied Trial judge dismissed appel- lants' action and awarded costs totalling $1,700,000 in favour of Crown and other respon- dents. Award included substan- tial amount as increased costs in excess of full indemnity. Dismissal of action was end of retrial of action commenced on July Specials Visit our web site and save 20% Municipal Lands: Acquisition, Management and Disposition Quinto M. Annibale Ontario Planning Practice: Annotated Statutes and Regulations WeirFoulds LLP Ontario Environmental Legislation, 2008-2009 edition (available on Standing Order only) Consulting Editor: Dianne Saxe Energy Regulation in Ontario Glenn Zacher and Patrick Duffy January 15, 1986. Appellants' request for retrial was denied. All of orders and directions which appellants now sought to challenge were discretionary decisions made by trial judge in furtherance of his obligation to control trial process. There was no factual foundation in record for appellant's argument that there was reasonable appre- hension of bias on part of trial judge. Finally, trial judge did not err in law or fail to exercise his discretion judicially in awarding increased costs. Having consid- ered entire history of retrial, no palpable and overriding error was detected in trial judge's findings of misconduct on part of appellants. Sawridge Band v. Canada (Apr. 21, 2009, F.C.A., Richard C.J., Evans and Sharlow JJ.A., File No. A-154-08; A-112-08) Appeal from 165 A.C.W.S. (3d) 1013 dismissed. Order No. 009/124/103 (12 pp.). ONTARIO CIVIL CASES Agency ATTORNEYS Application to remove attorney was dismissed Parties were siblings. Parties were jointly appointed by mother as attorneys of mother's proper- ty. Respondent attended bank with mother who suffered from dementia and had new account opened. Balance of joint account held by mother and appli- cant were transferred to new account. Applicant sought to remove respondent as attorney. Applicant argued respondent breached duty to act in appro- priate manner. Application was dismissed. Evidence did not establish misconduct or neglect. Respondent was honestly try- ing to protect mother's rights. Mother's pension income and money transferred were to be deposited into account used to pay mother's monthly expens- es. Respondent was to provide details regarding use of $2,328 raised by applicant in affidavit. Mullan v. Parr (Apr. 21, 2009, Ont. S.C.J., Hourigan J., File No. CV-08-03329-ES) Order No. 009/118/036 (9 pp.). Appeal FINAL OR INTERLOCUTORY ORDER Matter was transferred to Divisional Court Motion for directions by defen- dant on whether appeal from dismissal of motion to amend statement of defence to plead defences to oppression action lay with Ontario Court of Appeal or to Divisional Court. Plaintiffs were minority share- holders in company of which defendant was director and con- trolling shareholder. Plaintiffs alleged that defendants con- ducted affairs of company in manner that was oppressive and unfairly prejudicial to security holders. Defendant's motion seeking leave to amend his state- ment of defence was dismissed. It was ordered that matter was transferred to Divisional Court. Proper route of appeal was to Divisional Court. Section 255 of Business Corporations Act (Ont.), provides that appeals lies to Divisional Court from order made by court under this Act. Order by motion judge was "an order made...under this Act" www.lawtimesnews.com Web Discount (LT 1-4x5).indd 1 6/24/09 2:48:17 PM

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