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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Appeal INTERVENTION Trade association was refused leave to intervene N. had appealed motion judge's decision refusing to determine validity of ss. 2, 3 and 4 of Reg- ulations Amending the Patent- ed Medicines (Notice of Com- pliance) Regulations (Can.), on ground that he either lacked jurisdiction in subject proceed- ing to grant relief sought or, if he had jurisdiction, it was not appro- priate for him to exercise it. CG- PA's request for leave to intervene in appeal was dismissed. CGPA was trade association representing manufacturers of generic drugs in Canada, including N.. CGPA would not bring to appeal suf- ficiently different perspective on questions likely to be in issue as to warrant being granted intervener status. Interests of justice were not advanced by granting leave to CGPA to intervene in appeal. Eli Lilly Canada Inc. v. No- vopharm Ltd. (Jan. 29, 2009, F.C.A., Evans J.A., File No. A-565-08) Appeal from 173 A.C.W.S. (3d) 94, 70 C.P.R. (4th) 202 dismissed. Order No. 009/068/181 (8 pp.). Constitutional Law CHARTER OF RIGHTS Action arising from delay in processing of permanent residence applications was properly dismissed Trial judge dismissed appellants' action for damages in respect of delay in processing their ap- plications for permanent resi- dence. Trial judge found that Minister did not owe appel- lants duty of care. Further, even if duty of care existed and was breached, appellants had not demonstrated that alleged dam- ages were caused by Minister's negligence. Trial judge also dis- missed appellants' claims that delay violated s. 7 of Canadian Charter of Rights and Free- doms as well as their Charter challenges to validity of s. 34(1) (f ) of Immigration and Refugee Protection Act (Can.). Finally, trial judge saw no reason to depart from ordinary rule that costs follow event. Trial judge committed no reviewable error. Khalil v. Canada (Mar. 6, 2009, F.C.A., Decary, Sexton and Blais JJ.A., File No. A-469-07) Appeal from 160 A.C.W.S. (3d) 641, 65 Imm. L.R. (3d) 8, 160 C.R.R. (2d) 234, 317 F.T.R. 32, 4 F.C.R. 53 dismissed. Order No. 009/092/261 (10 pp.). FEDERAL COURT Human Rights Legislation DISCRIMINATION Investigation into applicant's complaint was thorough Applicant sought to set aside Canadian Human Rights Commissions' decision dis- missing his complaint that his employer failed to accommo- date his disability. Applicant's employer accommodated him for obesity and sleep apnea. Applicant applied for a promo- tion and disclosed, for the first time, a learning disability. As a result, the employer accom- modated him in the interview and exam process. Applicant was successful at interview and exam but was screened out of job competition after refer- ence check. Applicant's super- visor reported that applicant had frequent absences, lateness and breaks, problems with co- workers, missed deadlines and had to be put on a performance improvement plan. Applicant's grievance was dismissed so applicant filed human rights complaint. Commission based decision on investigator's re- port that found applicant did not disclose learning disabil- ity to supervisor and employer could not be expected to guess at what applicant's job perfor- mance would have been like had he been accommodated. Investigator also determined that deficiencies such as late- ness and absences could not be attributed to applicant's dis- ability. Applicant argued that investigator failed to investigate both his entire complaint and all the evidence. Application dismissed. Investigator's re- port showed understanding of applicant's complaint but de- cided that not all performance issues were related to disability and impossible to determine which ones were and to what extent given applicant's failure to disclose early enough for ac- commodation to be made. No evidence that people not inter- viewed by investigator could have provided useful informa- tion. Investigation appropri- ately thorough. Kandola v. Canada (Attorney June 1, 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. General) (Feb. 11, 2009, F.C., Zinn J., File No. T-1652-07) Order No. 009/063/041 (12 pp.). TAX COURT OF CANADA Taxation INCOME TAX Income arising from inventory trades was not income from property Appellant claimed business in- vestment loss of $111,540 in respect of moneys loaned to A. and considered unrecover- able. Minister denied $62,889 as ineligible allowable business investment loss on basis A. was carrying on specified invest- ment business. Minister al- lowed $111,540 as net capital loss. Appellant was sole director, officer and employee of A.. Ap- peal was allowed. Income aris- ing from inventory trades could not be characterized as income from property. A. was not en- gaged in specified investment business. Return to A. was not income from property because A. was co-venturer and income retained character of underly- ing inventory trades. A.'s prin- cipal purpose was not to derive income from property. Langille v. Canada (Mar. 6, 2009, T.C.C., Campbell J.T.C.C., File No. 2006- 2241(IT)G) Order No. 009/078/040 (18 pp.). ONTARIO CRIMINAL CASES Proceeds Of Crime FORFEITURE Assessment of impact of order for forfeiture of home encompassed consideration of interests of family members living in home at time of hearing Crown applied for forfeiture of accused's home pursuant to s. 16(1) of Controlled Drugs and Substances Act. Accused convicted of offences arising from marijuana grow opera- tion in home. Home owned jointly with ex-wife, who paid mortgage. Ex-wife and three adult children moved into home after accused arrested. Court could refuse forfeiture under s. 19.1(3) of Act, where impact of order disproportion- www.lawtimesnews.com ate to: nature and gravity of of- fence; circumstances surround- ing commission of offence; and accused's criminal record. Application granted. Assess- ment under s. 19.1(3) encom- passed consideration of inter- ests of family members living in home at time of forfeiture hearing. Impact of forfeiture not disproportionate. Accused had no criminal record and did not use entire home for grow operation. However, operation was sophisticated, commercial venture. Accused's motives not mitigating. Accused had no investment in property. For- feiture would have no financial impact on eldest child and full extent of impact on others dif- ficult to assess without testi- mony. Children had sources of income and ex-wife's claim best addressed through application under s. 20(1) of Act. R. v. Tran (Mar. 24, 2009, Ont. C.J., Caldwell J., File No. 10000532-01) Order No. 009/085/003 (10 pp.). Breathalyzer REFUSAL TO PROVIDE SAMPLE Odour on breath was sufficient to found reasonable suspicion Trial of the accused for failing to comply with a demand that she provide a sample of her breath. Police officer stopped the ac- cused at a spot check. She was not driving badly and it was just a routine stop. Accused de- nied that she consumed alcohol but the officer smelled alcohol on her breath. He also noticed that her eyes were glassy, watery and blood shot. He made a de- mand for a breath sample. She made six unsuccessful attempts to provide the sample and was charged. Accused convicted. Crown proved that the officer had a reasonable suspicion that the accused drove with alcohol in her body. He was therefore entitled to make the breath demand. Only evidence that could form the basis for the suspicion was the odour on her breath. That was enough to found his reasonable suspicion. Crown also proved beyond a reasonable doubt that the ac- cused failed or refused to com- ply with the officer's demand to provide the sample. Machine worked properly and there were no obstructions to the flow of breath into it through the mouthpiece. R. v. Havelkova (Apr. 3, 2009, Ont. C.J., Bovard J., File No. 10006055) Order No. 009/097/037 (7 pp.). ONTARIO CIVIL CASES Civil Procedure AFFIDAVITS Lawyer's affidavit in support of motion for default judgment was improper Defendant insurer brought motion in name of plaintiff, its insured, to recover $65,000 which it had paid to plaintiff who was involved in motor ve- hicle accident with defendant A., who was uninsured. In do- ing so, insurer had responded to uninsured motorist coverage in policy it had issued to plain- tiff and settled plaintiff's claim for that sum and then sought to enforce its subrogated claim against A.. A. did not defend claim made against him by insurer and was noted in de- fault. Motion for judgment not granted on material present. It was not proper for lawyer to take file from somewhere in her office, read parts of it and then set out facts gleaned from file as if those facts were based on her "knowledge". Nor was it proper for lawyer in such circumstances to represent that she had some dialogue with file and that file "advised" her of its contents to enable her to invoke and rely on rule 39.01(4) of Rules of Civil Procedure (Ont.). Motion adjourned to date to be fixed and required further and better material to be delivered if it was to be renewed. Kailayapillai v. Azzam (Mar. 18, 2009, Ont. S.C.J., Matlow J., File No. 07CV336365PD3) Order No. 009/082/190 (3 pp.). DEFAULT Undue delay not adequately explained by defendant Motion by defendant to set aside default judgment. De- fendant, a real estate agent, was clearly served with judgment from plaintiff's fraudulent and negligent misrepresentation ac- tion. Defendant knew about judgment by January 2008 and retained solicitor in March but did not file this motion until December 2008. Defendant explained delay due to fact that criminal charges had also been brought against him and he had been unable to afford a lawyer sooner because his em- ployment had been terminated due to proceedings against him. Motion dismissed. Undue delay not adequately explained, sug- gesting defendant ignored ac-

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