Law Times

Page 14 January 25, 2016 • Law Times www.lawtimesnews.com registered four FUSION PRO trademarks, three of which had design. C Ltd.'s trademarks were registered in association with grout for f looring. D Ltd. brought application for order expunging C Ltd.'s trademarks from register on basis of likelihood of confusion. Application dismissed. None of C Ltd.'s trademarks were likely to be confusing with D Ltd.'s regis - tered or common law trademarks. D Ltd.'s trademarks did not have inherent distinctiveness. Word "Fusion" was fairly common and suggestive dictionary word. Other entities used word "Fusion" in f looring business in Canada. Evidence of acquired distinctive - ness was at best very thin. Use of registered trademarks by two af- filiates could not be considered under s. 50(1) of Trademarks Act due to lack of evidence of licens- ing arrangements or D Ltd.'s con- trol over character or quality of goods using trademarks. Com- mon control between companies through parent company was in- sufficient to demonstrate control. Such uncontrolled use of "Fusion" trademarks by D Ltd.'s affili- ates arguably diminished trade- marks' alleged distinctiveness. C Ltd.'s trademarks were inher- ently stronger than D Ltd.'s since grout had no adhesive or "join- ing" properties suggested by word "Fusion". C Ltd. also had strong sales and engaged in advertising. Parties' wares were not essentially and primarily same. D Ltd. had not used its trademarks in as - sociation with grout. Parties did not primarily target same types of customers and did not operate at same trade level. Distribution Prosol PS Ltd. v. Custom Building Products Ltd. (Oct. 15, 2015, F.C., Denis Gascon J., File No. T-874-14) 260 A.C.W.S. (3d) 349. ONTARIO CIVIL CASES Civil Procedure CHANGE OF SOLICITOR Order was granted removing counsel appointed by insurer Father dropped off plaintiff, who was six-years-old at time. Plain- tiff ran after hat into intersection and was struck by car. Jury found plaintiff 's father solely responsible for injuries plaintiff suffered in car accident. Jury awarded plain - tiff damages of $835,000. Plaintiff appealed and counsel appointed by father's insurer cross-appealed to set aside finding of liabil - ity against father. Cross-appeal sought to set aside all particulars of negligence against father and to dismiss action against him. One of particulars sought to be set aside was "unsuitable choice of unloading area" which was only particular for which father could claim coverage under his insur - ance policy. Plaintiff and father brought motions to disqualify counsel appointed by father's in- surer from continuing to repre- sent father on appeal and cross- appeal asserting that continued representation gave rise to rea- sonable apprehension of conf lict of interest between insurer and insured. Motions granted. Order was granted removing counsel appointed by father's insurer and order was granted appointed LG as counsel of record for father on appeal and cross-appeal. Order was granted requiring father's in - surer to pay LG's reasonable fees and disbursements. Reasonable apprehension was readily appar- ent. Apprehension arose because reasonable bystander might think counsel appointed by insurer would focus on overturning one finding for which insurer could be liable to indemnify insured and focus less on findings of neg - ligent parental supervision for which insurer had no obligation to indemnify. Test was not actual conf lict of interest, but reasonable apprehension of conf lict of inter - est. Hoang v. Vincentini (Nov. 16, 2015, Ont. C.A., John Laskin J.A., In Chambers, File No. CA M45481,M45484 (C55389)) 260 A.C.W.S. (3d) 220. CLASS ACTIONS Other than fee sharing agree- ment, class counsel's claim for payment of fees and disburse- ments was fair and reasonable Plaintiffs brought class actions in multiple provinces against defen- dants with respect to fees charged to merchants accepting payment from consumers via credit cards. To resolve carriage dispute, class counsel entered into fee-sharing agreement with law firm that brought carriage motions in two provinces. Plaintiffs' class action was certified in British Columbia. Plaintiffs entered into settlement agreements with three of defen - dants. Plaintiffs brought motion for approval of settlements, of fee agreement with class counsel, and of class counsel's fees and disburse - ments. Motion granted in part. Other than fee sharing agreement, class counsel's claim for payment of fees and disbursements was fair and reasonable. Having regard to litigation risks and work by class counsel as well as good outcome of settlements, fee of $3,384,571.95 was appropriate. Award reduced class counsel fee by 10 per cent, on account of portion of counsel fee that would have been shared with law firm. Fee sharing agreement was unauthorized, unenforceable and possibly illegal agreement. Agreement required approval of court to be enforceable, pursuant to s. 32 of Class Proceedings Act as agreement about how fees paid by class members to class coun - sel were to be paid and shared. It was not fair, reasonable, or just to have class members pay law firm that was putative class counsel of stayed rival class action. Law firm did not make contribution to achievement of settlement agree - ment and should not share in re- covery, especially as its late com- mencement of actions after suc- cess of similar actions in United States, suggested sole purpose of opportunism to share in fees. Fee sharing agreement might breach law against champerty or mainte - nance. While class counsel genu- inely believed that it was necessary and in best interests to sign fee agreement, to avoid chaos and de- lay of carriage dispute, they were mistaken in disregarding merits of carriage arguments and fail- ing to stand up for class members. Reduction was also warranted be- cause class counsel did not need to commence overlapping national class actions in multiple provinces, ultimately obtaining orders from those courts that added nothing to work already done by court that certified national class action. Bancroft-Snell v. Visa Can - ada Corp. (Nov. 23, 2015, Ont. S.C.J., Perell J., File No. CV-11- 426591CP) 260 A.C.W.S. (3d) 223. Crown ACTIONS AGAINST CROWN Action against Canada for negligence and negligent investigation was dismissed In March 2005, having recently received their Canadian citizen- ship, plaintiff, his wife and their two children went to Niagara Falls to celebrate. At American border crossing, plaintiff was handcuffed, detained and ques - tioned for hours. Eventually, he was fingerprinted, photographed and denied entry into United States. Afterwards, plaintiff wrote angry email to President of Unit - ed States, which was forwarded to Prime Minister of Canada. In April 2005, plaintiff applied for Australian visas so he could travel to Australia with his fam - ily for business. Plaintiff 's visa was not approved, but those for his wife and children were. Subse- quently, family travelled to India. While there, plaintiff attempted to obtain his Australian visa. He filed complaint of treatment he received at Canadian High Com - mission in India while attempting to obtain required documenta- tion. He also attended at United States High Commission to see if he could get Australian visa and to enquire about earlier incident at border crossing. While there he was questioned, but was allowed to leave without incident. Plaintiff subsequently issued claim against Canada for $2.6 billion in dam - ages for negligence and negligent investigation. Plaintiff claimed Canada had spread false informa- tion about him to other countries and failed to take any action fol- lowing two incidents in 2005. Action dismissed. There was no evidence that Canadian officials were involved in or instigated plaintiff 's detention by United States authorities, or that it was result of any information or mis - information provided by Canadi- an officials. While plaintiff 's ap- plication for Australian visa took almost two years to process, there was no evidence as to whether that was unusual amount of time or why it took that length of time. Plaintiff did not prove that United States or Australia had anything about him in their records or that if they did have anything that it came from Canada. Singh v. Canada (Attor - ney General) (Nov. 9, 2015, Ont. S.C.J., Hood J., File No. CV-07- 330175PD3) 260 A.C.W.S. (3d) 275. Employment EMPLOYMENT STANDARDS Notice provision was valid and enforceable Employer was non-profit organi- zation. Employer hired employee at end of 2000 to work as proj- ect manager of particular direc- tory that was published annually. Employee initially worked un- der series of annual contracts. In 2007, parties entered into written employment agreement with in- definite term. Employee received significantly higher base salary and commission potential. Em- ployee was required to accept very short notice period in event of dismissal without cause. Notice period was to be 15 days or length of time required by Employment Standards Act, 2000. Directory's sales volumes steadily declined. Employer terminated employee in 2013 without cause after deciding to stop publishing directory. Em - ployee commenced action against employer for damages for wrong- ful dismissal. Employee brought motion for partial summary judg- ment declaring notice provision to be invalid. Motion dismissed. Notice provision was valid and enforceable. Employer could not be said to have repudiated agree - ment in such way as to make entire agreement unenforceable. Em- ployer had no intention of trying to contract out of minimum stan- dards in act, so s. 5(1) of act did not operate to invalidate agreement. Fact that one irrelevant provision in agreement was inadvertently inconsistent with provision in - cluded in act in 2005 did not mean relevant provision in agreement was rendered invalid. Agreement itself provided for severability of invalid provisions. There was no reason to disregard severabil - ity provision. Agreement was not ambiguous as result of including reference to 15-day notice period as alternative to notice required by act. Employee was simply to have benefit of greater notice period. Oudin v. Centre Franco - phone de Toronto, Inc. (Oct. 29, 2015, Ont. S.C.J., Sean F. Dun- phy J., File No. CV-14-502077) 260 A.C.W.S. (3d) 281. Environmental Law DAMAGES Trial judge erred in finding no compensable "loss or damage" under s. 99(2) of Environmental Protection Act established Parties owned adjoining prop- erties in industrial area. Thorco stored large volumes of waste petroleum hydrocarbons for de- cades, resulting in contaminated soil and groundwater. Thorco in almost constant breach of license and/or compliance orders issued by Ministry of Environment and Climate Change. Groundwater f lowing from Thorco's property contaminating Midwest's prop - erty. Midwest suing Thorco and its owner, JT, relying on breach of s. 99(2) of Environmental Protection Act, nuisance and negligence. Trial judge found Thorco not liable, concluding that Midwest failed to prove waste petroleum hydrocarbons contamination lowered value of its property. She held that rem - edy under s. 99(2) not available since MOE had already ordered Thorco respondents to remedi- ate Midwest's property. Midwest appealed. MOE intervened, con- testing finding that order to re- mediate precluded recovery un- der s. 99(2) of act. Appeal allowed. Section 99(2) aimed at minimiz- ing harm caused through dis- charge of pollutants by requiring prompt reporting and clean-up regardless of fault, and at ensur- ing parties that suffer damage are compensated through statutory right to recovery. Trial judge's interpretation undermined leg - islative objective of establishing separate, distinct ground of li- ability for polluters and incon- sistent with plain language and context of provision. MOE order and recovery under s. 99(2) not mutually exclusive. Trial judge erred in finding no compensable "loss or damage" under s. 99(2) established. Recent case law re - f lects "polluter pays" principle, which provides that whenever possible, party that causes pollu- tion should pay for remediation, compensation and prevention. Plain reading of s. 99(2) of act also suggests that parties entitled to recover full cost of remediation. Midwest not required to prove actionable nuisance in order to succeed in s. 99(2) claim. Nor did Midwest have obligation to estab - lish its property was clean when purchased. Midwest commenced action within two years of buying property and discovering con - tamination; that was all that was required. Section 99(2) of act pro- vides that action lies against own- er of pollutant and person who controls pollutant. JT, as Thorco's principal, had sole control of Thorco, which owned the waste petroleum hydrocarbons, dur - ing relevant period. Thorco was small business with day-to-day operations effectively controlled by JT. Thorco and JT jointly and severably liable under s. 99(2). Midwest Properties Ltd. v. Thordarson (Nov. 27, 2015, Ont. C.A., K. Feldman J.A., C.W. Hou- rigan J.A., and M.L. Benotto J.A., File No. CA C56758) Decision at 226 A.C.W.S. (3d) 1039 was re- versed. 260 A.C.W.S. (3d) 419. Environmental Law DAMAGES Trial judge erred in finding no compensable "loss or damage" under s. 99(2) of Environmental Protection Act established Parties owned adjoining prop- erties in industrial area. Thorco stored large volumes of waste petroleum hydrocarbons for de- cades, resulting in contaminated soil and groundwater. Thorco in almost constant breach of license and/or compliance orders issued by Ministry of Environment and Climate Change. Groundwater f lowing from Thorco's property contaminating Midwest's prop - erty. Midwest suing Thorco and

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