Law Times

Law Times • march 26, 2012 independent of Ministry of Attorney General and provincial government and members not employees but rather holders of an office. They were paid for each day on which they rendered ser- vices. Number of days on which services required unpredictable, varying with number of judicial vacancies. Pursuant to Canada Pension Plan definition of "office" and regulations, member of com- mittee engaged in pensionable employment if position carries entitlement to "fixed or ascertain- able stipend or remuneration". Legal entitlement to per diem rate of remuneration established in advance sufficiently "fixed or ascertainable" to meet test. M.N.R. v. Ontario (Nov. 16, 2011, F.C.A., Nadon, Sharlow and Dawson JJ.A., File No. A-72-11; A-73-11) 210 A.C.W.S. (3d) 275 (6 pp.). Industrial And Intellectual Property PATENTS Respondent prevented from getting into market because of appellant's prohibition application Appellant's application for prohibi- tion prevented respondent from marketing Apo-Norfloxacin for over five years. Relying on s. 8 of the Patented Medicines (Notices of Compliances) Regulations (Can.), respondent sued appel- lant for damages. Federal Court awarded respondent damages. Federal Court ruled in favour of respondent's action against appel- lant under s. 8 of Regulations. In course of its reasons, Federal Court ruled that 1998 version of s. 8 of Regulations ("1998 Regulations") applied to this case, and not 1993 version of s. 8 of Regulations ("1993 Regulations"). Appellant appealed from that ruling. Appellant also submitted that Federal Court erred in fact and law in conclud- ing that respondent suffered loss as result of appellant's prohibition application. Appellant's appeal was dismissed. Appellant's appli- cation for prohibition was "pend- ing" when 1998 Regulations came into force. Therefore, by operation of transitional provi- sion in 1998 Regulations, 1998 Regulations applied in this case. 1998 Regulations could not be said to be retroactive or retrospec- tive or interfere with any vested rights of appellant. Federal Court Judge correctly held that 1998 Regulations were authorized by s. 55.2(4) of Patent Act (Can.), were valid, and applied in this case. Federal Court found that respon- dent suffered loss as result of appellant's prohibition application. Respondent established, to satis- faction of Federal Court, that it was prevented from getting into nor- floxacin market because of appel- lant's prohibition application. In establishing this, respondent satis- fied Federal Court that, on balance of probabilities, it would have had access to available supply of non- infringing norfloxacin. There was sufficient evidence upon which Federal Court could have made factual findings it did, and those findings were not susceptible to review in appellate court. Apotex Inc. v. Merck & Co. (Nov. 25, 2011, F.C.A., Sexton, Layden- Stevenson and Stratas JJ.A., File No. A-154-10) Decision at 186 A.C.W.S. (3d) 1115 was affirmed. 210 A.C.W.S. (3d) 224 (32 pp.). Taxation INCOME TAX Remedy for adopting policy wrong in law was to reject policy, not extend it Main issue in income tax appeal was whether made by respondent certain payments to Swim Canada, which was "registered Canadian amateur athletic asso- ciation" as defined in s. 248(1) of Income Tax Act (Can.), entitled respondent to tax credit under s. 118.1 of Act. Basis of assessment under appeal was that payment was not gift because respondent received consideration for it in form of swimming lessons for his children. Tax Court Judge allowed respondent to amend pleadings to support his argument that his income tax assessment should be vacated because Minister, acting through Canada Revenue Agency, followed certain assessing policy relating to gifts to charities that favoured other taxpayers and not him, and that assessing policy in question breached respondent's right under s. 15 of Canadian Charter of Rights and Freedoms to equal protection and benefit of law without discrimination on basis of religion. Appeal was allowed. Decision to allow amendment in this case was based on error of law. Assuming, as alleged by respondent, that Minister followed assessing policy described above, it could not follow that this would entitle respondent to tax credit for payment to Swim Canada for which he received consideration. Remedy for adopting policy that was wrong in law was to reject policy, not extend it to everyone who paid for swimming lessons for their children. CASELAW Fluevog v. Canada (Dec. 5, 2011, F.C.A., Nadon, Sharlow and Mainville JJ.A., File No. A-476-10) Decision at 195 A.C.W.S. (3d) 657 was reversed. 210 A.C.W.S. (3d) 66 (5 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS Nothing to indicate trial judge engaged in unbalanced scrutiny of evidence Accused appealed her convic- tions for assault, uttering threat to cause death, possession of weap- on for purpose of committing offence and breach of undertak- ing. Accused submitted trial judge misapprehended certain por- tions of evidence and engaged in unbalanced scrutiny of evidence. Complainant in case was accused's spouse. Appeal dismissed. There was nothing to indicate that trial judge misapprehended evidence or engaged in unbalanced scrutiny of evidence. Appeal court's broad jurisdiction does not allow appeal judges to substitute their own cred- ibility findings for those of trial judge. R. v. Chung (Dec. 6, 2011, Ont. S.C.J., Trotter J., File No. 169/10) 98 W.C.B. (2d) 479 (5 pp.). Charter Of Rights RIGHT TO BE INFORMED OF SPECIFIC OFFENCE Accused's testimony confirmed he knew his jeopardy at outset Crown brought application for order permitting Crown to tender as part of its case audio videotaped statement of accused taken on day of his arrest "for historical sexual offences". Complainant alleged 30 years after the fact that when he was 11 or 12 and accused, 26, was his teacher, that there had been sexual relations between them. Accused initially denied any such contact but pursuant to officer's line of questioning, in which he purported to be sympathetic, accused admitted to less invasive instances of sexual activity initi- ated by enthusiastic complainant. Crown application granted, video/ audio statement of accused admis- sible. Court found as a fact that accused knew exactly jeopardy he faced when he was told in prin- cipal's office that he was under arrest for historic sexual assault. Accused's testimony confirmed Recruiting? Post your position on GREAT RATES. GREAT REACH. GREAT RESULTS. Contact Sandy Shutt at sandra.shutt@thomsonreuters.com for details. www.lawtimesnews.com JobsInLaw 1/4 pg 5X.pdf 1 2/15/11 4:18:54 PM that he knew his jeopardy at outset and it did not change. R. v. Williamson (Nov. 17, 2011, Ont. S.C.J., Tranmer J., File No. 285/10) 98 W.C.B. (2d) 518 (53 pp.). Costs GENERAL Steps respondents took in seeking recusal order improper, vexatious and unnecessary Respondents' motion seeking recusal of judge from further involvement in proceedings was dismissed. Respondents had sub- sequently advanced series of leave motions and appeals, all of which were unsuccessful, that in theory could have had result of discharg- ing judge from further involve- ment in proceedings. Applicants commenced proceeding for for- feiture of property as proceeds or instruments of crime seized by police in connection with their investigation of alleged illegal drug distribution operation involving respondents. Respondents were ordered to pay costs of Attorney General of Ontario at $4,795.86 and to Toronto Police Services Board at $3,500 on substantial indemnity basis. Allegations made by respondents were reprehen- sible, scandalous, or outrageous and fell within ambit of award of full indemnity costs. Conduct of respondents lengthened unnec- essarily duration of proceed- ing. Issues were important. Steps respondents took in seeking recu- sal order were improper, vexatious and unnecessary. Direk v. Ontario (Attorney General) (Dec. 13, 2011, Ont. S.C.J., Stinson J., File No. CV-09-386582; CV-09- 371609) 98 W.C.B. (2d) 512 (7 pp.). Courts JURISDICTION After first appearance of accused, promise to appear largely irrelevant to process Accused charged with impaired driving and "over 80". Crown applied for relief from decision which quashed information. Accused was released on prom- ise to appear. Justice declined to confirm promise to appear and endorsed information as "not confirmed". Justice did not can- cel promise to appear and caused accused to be notified. Trial judge quashed information on ground that promise to appear had not been confirmed. Application allowed. Court had jurisdiction to hear application even though Crown could have chosen to appeal under s. 830 of Criminal PAGE 15 Code. Information was valid, judge had jurisdiction to pro- ceed, and judge should not have declined jurisdiction. Failure to confirm promise to appear with- in reasonable time under s. 505 of Criminal Code did not affect validity of information. Purpose of promise to appear was to procure first attendance of accused. After first appearance of accused, prom- ise to appear was largely irrelevant to criminal process. Provision of Criminal Code that was designed to prevent unnecessary pretrial detention should not be used to prevent trial on merits. Order of trial judge set aside and informa- tion ordered to proceed to trial. Given that justice did not can- cel promise to appear and notify accused, it was not open to judge to conclude that case for issuing of process had not been made out. There was no timely objection by accused. Courts never sanctioned notion that accused could wait out summary conviction limitation period and then pounce. R. v. Cook (Dec. 15, 2011, Ont. S.C.J., Ramsay J., File No. 11-3254) 98 W.C.B. (2d) 514 (6 pp.). Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Improbable that counsel would have advised accused to give one sample Accused was charged with impaired driving and refusing breathalyzer. Accused was arrested after his car was found driven into ditch on clear day even though accused claimed there was fog. Accused displayed strong indi- cia of impairment that included unsteadiness, slurred speech, confusion, excessive talking and obsessive demands. Police testified in regards to extensive skid marks indicating high rate of speed and accused gave different versions as to amount he had to drink that night. Accused also only gave one instead of two samples claim- ing that was on advice of coun- sel. Accused found guilty. Court disbelieved testimony of accused as it was improbable that counsel would have advised him to give one sample and his testimony was contradicted in regards to weather conditions. Crown met its eviden- tiary burden as it only had to prove slight impairment of accused's ability to drive motor vehicle and there were significant indicia in that regard. R. v. Ramnarain (Nov. 18, 2011, Ont. C.J., Feldman J.) 98 W.C.B. (2d) 531 (6 pp.). LT

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