Law Times

Law Times • February 8, 2016 Page 13 www.lawtimesnews.com CASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. FEDERAL COURT OF APPEAL Industrial and Intellectual Property PATENTS No error in trial judge's con- struction of patent or assess- ment of expert evidence Plaintiffs owned '781 patent, relating to window on switch- gear assembly with line of sight to grounding switch, to verify position and confirm ground- ing of circuit breaker, and '772 patent, dealing with dimensions and positions of gas-insulated compartment and ground- ing switches. Plaintiffs' action against defendant competitor for patent infringement was dis- missed and defendant's coun- terclaim for declarations of pat- ent invalidity was allowed, with defendants awarded costs in amount of $350,000. Appeals dismissed. Trial judge found that phrase "moveable switch contact element" in '781 patent claim covered both "sliding contact switches" and knife blade switch- es such that it did not differ from prior art disclosing use of view- ing windows to determine posi- tion of "knife blade switches". Trial judge was right to avoid construing '781 patent in man- ner that would unduly neglect its wording, as principle of pur- posive construction only applied to language that could bear more than one equally plausible mean- ing. Plaintiffs failed to establish any palpable and overriding er- ror in trial judge's assessment of expert evidence informing read- ing of patents. It was open to trial judge to reject plaintiffs' submis- sions that purpose of '781 patent was to address problem unique to linear-travel switches and that its figures showing only linear- travel switch were only exempla- ry and not embodiments of all switches covered. Trial judge was entitled to accept defendant's expert evidence that inspection windows were well-known in prior art and to reject plaintiff 's expert evidence that placement of window was inventive. Trial judge's infelicitous paraphras- ing of expert's testimony on in- ventiveness did not indicate he misconstrued that testimony. Trial judge's conclusions on ob- viousness were not vitiated by palpable and overriding error. Plaintiffs failed to establish any reviewable error in finding that presence of second switch was essential element in '772 patent's claim, which construction sup- ported trial judge's finding that all claims were obvious. Plain- tiff 's submissions went mainly to weight that should have been placed on expert reports, which was matter for trial judge. Trial judge's finding that invention path was neither complex nor time consuming did not involve palpable and overriding error. ABB Technology AG v. Hyundai Heavy Industries Co. (Aug. 18, 2015, F.C.A., David Stratas J.A., Wyman W. Webb J.A., and D.G. Near J.A., File No. A-346-13, A-379-13) Decision at 233 A.C.W.S. (3d) 229 and 234 A.C.W.S. (3d) 577 were affirmed. 260 A.C.W.S. (3d) 838. Labour Relations COLLECTIVE AGREEMENT Breastfeeding during working hours was not legal obligation towards child under employee's care Employer refused grievor's re- quest to telework five days per week following maternity leave in order to continue breastfeed- ing. Union brought unsuccessful grievance alleging failure to ac- commodate and discrimination on grounds of sex and family sta- tus, contrary to collective agree- ment and Canadian Human Rights Act. Employee brought application for judicial review. Application dismissed. Employ- ee did not make case of prima facie discrimination and board's application of facts to John- stone factors was reasonable. Employee did not meet burden on second and third factors of Johnstone test, which were that she has legal obligation to care for child and that she had made reasonable efforts to meet her obligation through reasonable alternative solutions. Breast- feeding during working hours was not legal obligation towards child under employee's care, it was personal choice. Employee made no reasonable effort to find viable solution as she never addressed employer's reason- able concerns with her proposal to leave office twice a day for 45 minutes to breastfeed her child during paid hours. Flatt v. Canada (Attorney General) (Nov. 10, 2015, F.C.A., Johanne Trudel J.A., A.F. Scott J.A., and Mary J.L. Gleason J.A., File No. A-557-14) 260 A.C.W.S. (3d) 846. FEDERAL COURT Aboriginal Peoples CROWN RELATIONSHIP Department of Fisheries and Oceans met duty to consult Authorization was issued pursu- ant to ss. 32(2)(c) and 35(2)(b) of Fisheries Act and permitted im- pacts to fish and fish habitat aris- ing from construction of hydro- electric generating station pro- posed by NE. Applicant mem- bers of First Nation community council brought application for judicial review to challenge deci- sion of Minister of Department of Fisheries and Oceans (DFO) to issue authorization to NE. Application dismissed. Duty to consult was met and minister's decision to issue authorization was reasonable. Process set out in Regulatory Phase Protocol was adequate to meet Canada's duty to consult, was reasonable and was followed by DFO. While DFO's response may have been less than perfect, perfection was not required so long as reason- able efforts have been made to consult and accommodate and if result was within range of pos- sible, acceptable outcomes which were defensible in respect of facts and law, there would be no basis to intervene. While applicants were not satisfied with many of Canada's responses, Minister's decision to issue authorization was ultimately reasonable. Nunatukavut Community Council Inc. v. Canada (At- torney General) (Aug. 18, 2015, F.C., Cecily Y. Strickland J., File No. T-1339-13) 260 A.C.W.S. (3d) 651. Administrative Law FREEDOM OF INFORMATION Interests and administration of justice better served if appli- cant's personal health infor- mation kept confidential In 1998, applicant sought ju- dicial review of administrative decision in respect of his entitle- ment to certain employment re- lated disability benefits. In 2000, judicial review was dismissed. In 2002, applicant noticed that reasons for decision were posted on Federal Court website. Rea- sons included personal health information about applicant that he wanted to keep private. His request that Internet version of decision be amended to exclude his personal health information was granted. In 2004, applicant was appointed Ombudsman at the Internet Corporation for Assigned Names and Numbers (ICANN), which administered domain names for the Internet. In 2004, K lodged complaint with ICANN respecting Uni- versal Domain Name Resolution Policy adjudication. Applicant determined that he did not have jurisdiction to hear complaint as K was not person affected by decision. In February 2011, K found information on the In- ternet concerning applicant's 1998 judicial review applica- tion. He posted link to Federal Court docket and reasons in two separate tweets on his Twitter ac- count. K also posted tweet which contained personal health infor- mation about applicant. After protest by applicant, tweet was taken down. At that time ap- plicant realized that, despite di- rection from court, his personal health information had not been removed from Internet versions of decision. In May 2012, ap- plicant filed a motion request- ing confidentiality order over underlying file in matter, which was granted. K brought motion to set aside confidentiality order. Motion granted in part. Con- fidentiality order was unneces- sarily broad. In order to ensure that court proceedings remained presumptively open and accessi- ble to public and media, reasons for decision shall be made public and material related applicant's file shall no longer be kept con- fidential. However, interests and administration of justice were better served if applicant's per- sonal health information was kept confidential. Allowing ap- plicant's health information to be publicly available would cause objectively discernible harm to his privacy and professional reputational interests. Redaction of reference to applicant's health information did not alter deci- sion in any way. Fowlie v. R. (Apr. 24, 2015, F.C., Donald J. Rennie J., File No. T-1971-98) 260 A.C.W.S. 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