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Law Times • may 4, 2009 there would be no finality in any refugee claim. Chico v. Canada (Minister of Citizenship and Immigration) (Jan. 2, 2009, F.C., Barnes J., File No. IMM-1541-08) Order No. 009/033/064 (10 pp.). Intellectual Property Industrial And TRADE-MARKS Application to expunge trade-mark registration based on alleged misrepresentations was dismissed Application by PDC for order expunging CA's trade-mark reg- istration of "BOD" on basis that it was obtained by fraudulent or materially false representa- tions in declaration of use. CA a hairstyling school and business. CA originally registered BOD trade-mark in 2004 based on overly broad declaration of use, which included body sprays and perfumes. After notice from PDC, an American vendor of body sprays, that it intended to commence proceeding to can- cel AC registration of BOD, CA filed amended use limiting its registration of BOD to "hair care, namely shampoo, condi- tioner". In 2006, PDC attempt- ed to register "BOD MAN" in an association with men's fra- grances and body sprays, but registration was barred by PC's amended BOD registration. PDC's request to expunge CA's amended registration dismissed. CA's overly broad original reg- istration was material, but an innocent misstatement and not sufficient to make BOD unreg- isterable in relation to shampoo and conditioner alone. Ameri- can doctrine that any material misrepresentation in the pro- cessing of a registration renders the entire resulting registration void is inapplicable. Parfums de Coeur, Ltd. v. Asta (Jan. 8, 2009, F.C., Phelan J., File No. T-1612-07) Order No. 009/033/084 (12 pp.). TAX COURT OF CANADA Taxation INCOME TAX Inside director did not exercise requisite standard of care to prevent failure to remit payroll source deductions Appeal from assessment which imposed liability for unpaid payroll source deductions of federal and provincial income taxes, employment and Canada Pension Plan premiums in 1999, 2000, 2001. Appellant was in- side director of M.. He had been founder of M. and was involved in day-to-day management, first as president, then as CEO. Ap- pellant was software developer and consultant who was intel- ligent, experienced in business matters, and had been director of five companies. Appellant was aware of his responsibilities under Income Tax Act (Can), as he had dealt with CRA in prior years when M. had failed to re- mit on time and had given pro- posal letter to set up payment schedule for unpaid source de- ductions that M. owed in 1996, 1997 and 1998. Appellant was assessed on basis that he was director of M. at time it failed to make remittances to Receiver General. Appeal dismissed. Ap- pellant had not shown that he exercised requisite standard of care to prevent failure to remit in 1999, 2000, 2001. Appellant was aware of M.'s precarious financial position and assumed risk that at some time M would not be able to remit its payroll source deductions. Standard of care set out in s. 227.1(3) of Act is inherently flexible as it is objective-subjective standard. Subjective aspect of standard of care applicable to director will depend on director's personal attributes, edge and experience. Generally, person who is experienced in business and financial matters is likely to be held to higher standard than person with no business acumen or experience. In assessing objective reason- ableness of conduct of director factors to be taken into account may include size of corporation, its customs and practices. Fact that corporation is in financial difficulty and subject to greater risk of default in tax remittances than other corporations, may be factor that raises standard of care. Director who is aware of corporation's financial dif- ficulties and who deliberately decides to finance corporation's operations with unremitted payroll source deductions may be unable to rely on due dili- gence defence. Defence in s. 227.1(3) of Act requires direc- tor to exercise reasonable care, diligence and skill to prevent failure to remit. It was not rea- sonable in circumstances of case where M. always had financial problems, that appellant con- tinue to finance M.'s operations with unremitted payroll source deductions. Comparelli v. Canada (Jan. 26, 2009, T.C.C., Miller J.T.C.C., File No. 2005-193(IT)G) Order No. 009/054/108 (15 pp.). including knowl- ONTARIO CIVIL CASES Administrative Law Application for judicial review of June 2007 order of Minister of Labour's delegate revoking prior order authorizing estab- lishment of Multi-Workplace Joint Health and Safety Com- mittee. Pursuant to s. 9(3) of Occupational Health and Safety Act (Ont.), Minister made order creating multi-site committee for 94 work places operated by respondent school board. After board and appli- cant teachers' federations failed to resolve differences Minister's delegate made June 2007 order. DUTY TO ACT FAIRLY Minister fulfilled obligation to consult with parties in revoking authorization of establishment of committee CASELAW Applicants sought to quash June 2007 order on grounds that Minister failed to reasonably ex- ercise discretion under Act and to comply with procedural fair- ness requirements. Application dismissed. Minister fulfilled ob- ligation to consult with parties in accordance with principles of procedural fairness. Meet- ings were held between parties and members of Ministry of La- bour, including Minister's dele- gate, prior to decision to rescind order establishing committee. Evidence also demonstrated applicants were aware of pos- sibility that prior order could be revoked if parties failed to resolve differences. Overarching purpose of Act was to promote and protect safety of employees. Committee failed to adequately address health and safety issues over lengthy period of time. Decision of Minister's delegate was reasonable and necessary to protect employees. Minister's decision was discretionary in nature to which high degree of deference was owed. It was akin to pure policy. No requirement to give written reasons for such kind of decision. E.T.F.O. v. Ontario (Minis- ter of Labour) (Feb. 17, 2009, Ont. S.C.J. (Div. Ct.), Wilson, Aston and Low JJ., File No. 376/07; 387/07) Order No. 009/056/058 (10 pp.). Appeal Respondent brought claim for indebtedness related to purchas- es in brokerage accounts. Order dismissed motion to set aside default judgments obtained by respondent. Appeal was dis- missed. Motion judge deter- mined materials did not offer adequate explanation for delay. Motion judge held materials did not show triable defence. Ap- pellant's motion to adduce fresh evidence was dismissed. Motion judge properly exercised discre- tion in dismissing motion to set aside default judgment. Reasons did not reveal error of principle or palpable and overriding fac- tual error. Decision did not amount to injustice. Nothing indicated proposed fresh evi- dence could not have been pro- vided to motion judge before. Proposed fresh evidence could not have been expected to have affected result on motion. HSBC Securities (Canada) Inc. v. Firestar Capital Management Corp. (Dec. 31, 2008, Ont. C.A., Cronk, Gillese and Ep- stein JJ.A., File No. C48286) Order No. 009/005/035 (8 pp.). FRESH EVIDENCE Proposed fresh evidence could not have affected result on motion to set aside default judgments Civil Procedure JOINDER Plaintiffs' claims were improperly joined Each of plaintiffs rented water heaters from one or all of defen- dants. Water heaters failed and caused flooding on separate oc- casions. Plaintiffs commenced single action for negligence and www.lawtimesnews.com breach of contract against defen- dants. Defendants brought mo- tion for order requiring claims of each of plaintiffs to be assert- ed in separate proceedings. Mo- tion allowed. Plaintiffs' claims were improperly joined. They did not arise from same transac- tion or occurrence. Water heat- ers were of more than one make and model with tank life spans ranging from 7 to 19 years. Claims also shared no common issues of law or fact. Individual issues required individual de- fences and individual trials for each plaintiff's claim. Finally, requiring defendants to defend plaintiffs' claims together would unduly complicate and delay proceedings and thereby cause prejudice to defendants. Bal- ance of convenience favoured order severing plaintiffs' claims. Dawe v. Reliance Home Com- fort S.C.J., Kelly J., File No. 07- CV-325789-0000) Order No. 009/054/033 (9 pp.). (Feb. 18, 2009, Ont. Contracts FORMATION Service contract not enforceable N. Ltd. hired defendant G. Ltd. to provide computer services to former. G. Ltd. retained B. as independent contractor to get N. Ltd.'s computer system up and working. After arrange- ment between G. Ltd. and N. Ltd. was terminated N. Ltd. directly retained services of B.. G. Ltd. failed to pay two later invoices of B. for services ren- dered. B. brought claim against G. Ltd. to recover payment under outstanding invoices. G. Ltd. resisted claim on ground that N. Ltd.'s retainer of B. was in breach of written service contract between G. Ltd. and B.. Service contract expressly prohibited B from providing services to G. Ltd.'s customers. Claim allowed. There was oral agreement between G. Ltd. and B. pursuant to which B.'s ser- vices were rendered and initially paid. G. Ltd. later presented B. with written service contract which included restrictive cov- enant. However there was no consideration passing between parties in respect of service con- tract. Accordingly service con- tract and restrictive clause not enforceable. B. entitled to judg- ment for amounts of outstand- ing invoices. Burgess v. Group West Systems Ltd. (Feb. 18, 2009, Ont. S.C.J., Bielby J., File No. 00-BN- 1466) Order No. 009/057/156 (12 pp.). MISREPRESENTATION Defendants breached implied conditions of contract PAGE 17 It was reasonable for plaintiff to assume goods could be le- gally offered for sale in United Kingdom and it was condition of sale of goods. Defendants breached contract to extent shipments arrived defective or grey market goods that did not correspond with samples. De- fendants breached contract in respect of US$200,000 by rea- son of breach of implied con- ditions. Representations were made that induced plaintiff to purchase goods. Individual de- fendants did not assume duty of care personally to in respect of negligent misrepresentation. Misrepresentations by individ- ual defendants created liability for corporate defendants. Plain- tiff did not prove claim for dam- ages. Evidence of disposition of defective goods was incomplete. Plaintiff transferred goods to another company which was not plaintiff in action. Terra Nova Systems Inc. v. R&M United Trade and Netowrk Inc. (Jan. 30, 2009, Ont. S.C.J., van Rensburg J., File No. 1757/01) Order No. 009/035/220 (46 pp.). Employment Plaintiff purchased items from defendant in Ontario for resale in United Kingdom. Plaintiff claimed goods were unsale- able. Plaintiff brought claim for breach of contract and neg- ligent and inspected goods before they were purchased. Action was dis- missed. Samples shown were of first quality branded goods. misrepresentation. De- fendants argued plaintiff was purchasing liquidation goods Application for judicial review of decision of arbitrator dispos- ing of grievance arising out of collective agreement between applicant school board and re- spondent members of teachers' association. Respondents ques- tioned credit for monitoring activities performed by Special Education Resource Teachers ("SERTS") that had been quan- tified by applicant as one course out of three that could be as- signed to SERTS under collec- tive agreement. Respondents did not grieve that applicant was assigning monitoring work to SERTS. Arbitrator made declaration that monitoring was not function properly assignable to SERTS. Application allowed. It was unreasonable for arbitra- tor to have issued declaration on issue that was not grieved. Issue before arbitrator was not whether monitoring was func- tion which applicant could le- gitimately assign to SERTS. Is- sue was whether applicant was obligated to attribute credit for class time for performing moni- toring activity. It was sufficient for arbitrator to make finding that monitoring was not equiv- alent to credit course or credit equivalent course. Halton Catholic School Board v. O.E.C.T.A. (Feb. 17, 2009, Ont. S.C.J. (Div. Ct.), Jen- nings, Swinton and Low JJ., File No. 463/08) Order No. 009/056/056 (9 pp.). LABOUR RELATIONS Unreasonable for arbitrator to issue declaration on issue not grieved Family Law DOMESTIC CONTRACTS Parties conducted Appeal by husband from deci- sion of motion judge setting aside final order based on Min- themselves as though formal document essential

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