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PAGE 22 Preliminary determination regard- ing entitlement to proceed with assessment of costs. Taxpayer un- successfully appealed twice from tax reassessment but successfully appealed to Federal Court of Ap- peal ("FCA"). Assessment of costs was requested but taxpayer did not follow through. Taxpayer unsuc- cessfully brought motion for order directing assessment of costs on solicitor-client scale. Taxpayer re- quested date for assessment of costs more than eight years after FCA judgment. Assessment of costs was not barred by s. 32 of Crown Li- ability and Proceedings Act (Can.). Taxpayer had taken step within six years of date of judgment to quan- tify award of costs via assessment. Fact that taxpayer sought higher than normal costs when not en- titled did not mean it had forfeited right to assess costs. In any event, assessment of costs was interlocu- tory process incidental to award of costs and so was not proceeding subject to s. 32 of Act. Urbandale Realty Corp. v. Canada (June 6, 2008, F.C.A., Assessment Officer Stinson, File No. A-449- 97) Order No. 008/176/081 (16 pp.). Proceedings Act (Can.) Pensions SURPLUS Judge erred in interpretation of s. 29(12) of Pension Benefits Standards Act, 1985 (Can.) applicant in reasonably timely manner. Commission's letter did not specifically address concerns as to investigation and report in ap- plicant's rebuttal and referred to re- buttal in neutral way. Application for judicial review was allowed. Issues raised in applicant's rebuttal were fundamental and should have been clearly considered and further investigation ordered or clear rea- sons given as to why not. Failure to interview witnesses was critical omission. Investigator failed to conduct proper and thorough in- vestigation. Egan v. Canada (Attorney General) (May 22, 2008, F.C., Hughes J., File No. T-462-07) Order No. 008/161/130 (12 pp.). Immigration Application judge erred in apply- ing correctness as appropriate stan- dard of review of Superintendent's interpretation of s. 29(12) of Pen- sion Benefits Standards Act, 1985 (Can.). Standard of reasonableness should apply. In any event, appli- cant judge erred in his interpreta- tion of s. 29(12). Section 29(12) simply grants discretionary power to Superintendent to order dis- tribution of assets in limited set of circumstances. Provision gives no right to members to distribu- tion of proportional share of any surplus existing at time of partial termination of pension plan. Ap- plicants failed to establish that, for purposes of Labrador and Monc- ton Termination, s. 29(12) requires distribution of proportional share of surplus attributable to partial termination of federally regulated defined benefit plan. Cousins v. Canada (Attorney Gen- eral) (June 26, 2008, F.C.A., Blais, Ryer and Noel JJ.A., File No. A-266-07; A-267-07; A-269- 07; A-270-07; A-271-07) Appeal from 157 A.C.W.S. (3d) 435; 60 C.C.P.B. 12; 58 C.C.E.L. (3d) 225; 311 F.T.R. 138 was allowed in part. Order No. 008/198/079 (26 pp.). FEDERAL COURT Human Rights Legislation Applicant was employee of CRA. Applicant was legally blind and suffered neck injury. Applicant re- tuned to work. Applicant claimed CRA failed to make reasonable accommodation. Commission determined CRA accommodated HUMAN RIGHTS COMMISSION Issues raised in applicant's rebuttal should have been specifically addressed Application for judicial review of decision rejecting applicants' claim for refugee protection. Applicants were family who had lived in Mex- ico. Applicant father helped politi- cal candidate get elected. Applicant father was offered position as head of local water commission. Ap- plicant father received threats on behalf of local powerful landowner warning him not to take position. Applicants left area but applicant father still received threatening calls demanding money. Someone tried to run applicant father's car off road after one such call. Ap- plicant father reported matters to police but they only offered to provide protection for fee. Appli- cants came to Canada and claimed refugee protection. Immigration and Refugee Board determined ap- plicants' entire claim was based on speculation. Application granted; matter remitted for re-determina- tion. Decision lacked justification, transparency, and intelligibility and was consequently unreasonable. Immigration and Refugee Board erred in rejecting applicants' evi- dence without explicit finding of lack of credibility. Absence of any damage to vehicle or personal in- jury was not indicative of absence of fear. Board's determination that fee sought by police was analogous to paying private security firm was not appropriate. Board's overall state protection analysis did not give proper consideration to appli- cants' circumstances. Medina v. Canada (Minister of Citi- zenship and Immigration) (June 10, 2008, F.C., Layden-Stevenson J., File No. IMM-236-08) Order No. 008/176/058 (8 pp.). REFUGEE STATUS Decision lacked justification, transparency and intelligibility Intellectual Property Industrial And PATENTS Minister's determination that patent was not relevant to delayed-release capsules was reasonable CASELAW evant to delayed-release capsules. Application dismissed. Standard of review was reasonableness for interpretation of notice of com- pliance, correctness for interpre- tation of patent, and reasonable for determination of relevancy of patent. Minister's interpreta- tion of notice of compliance was reasonable, his interpretation of patent was correct, and his deter- mination that patent was not rel- evant to delayed-release capsules was reasonable. Delayed-release capsules did not constitute form of drug that was intended to be orally disintegrated. Nature of delayed-release capsules was not changed by fact that capsules could dissolve in mouth or their contents could be sprinkled on applesauce. Capsules were intend- ed to be swallowed whole. Patent itself related to dissolving tablet intended for patients who were not able to swallow whole tablet. Minister therefore reasonably de- termined patent was not relevant to delayed-release capsules. Abbott Laboratories Ltd. v. Canada (Attorney General) (June 11, 2008, F.C., Blanchard J., File No. T-2011- 06) Order No. 008/176/071 (19 pp.). Application for judicial review of decision not to list patent on pat- ent register in connection with delayed-release capsule form of drug. Pharmaceutical company that held patent for rapidly dis- integrating solid preparation of drug. Pharmaceutical company obtained notice of compliance for delayed-release capsule form of drug. Pharmaceutical company sought to have patent listed on patent register in connection with these delayed-release capsules. Minister of Health determined that patent for rapidly disintegrat- ing solid preparation was not rel- Motion by pharmaceutical com- pany for order setting aside order of prothonotary dismissing appli- cation as abuse of process. Phar- maceutical company held patent listed on patent register in connec- tion with Viagra. Two competitors manufactured generic versions of Viagra. During process of ob- taining notice of compliance for its generic drug, first competitor served notice of allegation alleg- ing invalidity of pharmaceutical company's patent. Pharmaceutical company unsuccessfully brought application for order prohibiting issuance of notice of compliance to first competitor until after ex- piration of patent. Pharmaceutical company had failed to prove first competitor's allegation of invalidity was not justified. Second competi- tor applied for notice of compli- ance and served notice of allega- tion alleging invalidity of patent. Pharmaceutical company brought another application for order pro- hibiting issuance of notice of com- pliance until after expiration of patent. Pharmaceutical company wished to rely on additional evi- dence. Second competitor success- fully brought motion for dismissal of application as abuse of process. Motion dismissed. Law was clear that litigants were not permitted to re-litigate issue merely because they had acquired new evidence. Pres- ent case was not distinguishable from prior cases in which abuse of process had been found. Proposed additional evidence was not even new evidence since pharmaceuti- cal company acknowledged this evidence could have been used in prior proceeding. Fact that phar- maceutical company did not ap- preciate significance of this evi- dence was not relevant to finding of abuse of process. Pharmaceuti- cal company was required to put its best foot forward in other proceed- ing. Pharmaceutical company was actually engaging in thinly-veiled attack on prior judgment that had already found pharmaceutical company had notice of particular allegation. Possibility of more ac- curate result was not sufficient ba- sis for allowing matter to proceed, Dismissal of application as abuse of process upheld on review www.lawtimesnews.com OctOber 6/13, 2008 • Law times particularly since validity of patent was not actually determined in notice of compliance proceedings. Pharmaceutical company failed to establish any other basis for not ap- plying abuse of process doctrine. Pfizer Canada Inc. v. Novopharm Ltd. (May 29, 2008, F.C., Teitel- baum D.J., File No. T-1566-07) Order No. 008/176/063 (23 pp.). Natural Resources FISHERIES Minister of Fisheries and Oceans illegally used proceeds of sale of snow crab Minister of Fisheries and Oceans reached agreement with APPFA regarding enhanced management of snow crab fishery. APPFA to implement various projects and pay Minister $1,500,000 to be spent on certain specific goals in exchange for fishing licence with allocation of 1,000 metric tons of snow crab. After APPFA paid the money, Federal Court of Appeal disallowed similar arrangement for 2003 fishing season. Minister had already spent $477,326 of amount received but completed remaining projects for 2006 fish- ing season by financing them with public funds. Applicants argued that amount received from APP- FA in exchange for allocation did not belong to Department and that it should have been distrib- uted among licence-holders for 2006 fishing season given reduc- tion in their share of allocation. Department of Justice refused re- quest. Minister subsequently rec- ognized he acted in excess of his powers. Applicants sought writ of mandamus forcing Minister to return illegally held money to applicants in proportion to per- centage of total allowable catch. Application for judicial review allowed in part. Although ap- plicants had no proprietary right in snow crab and Minister had authority to revoke earlier indica- tions that fishing licences would be issued, Crown had no right to amount belonging to third party. Minister illegally using proceeds of 2006 sale. Federal Court did not have jurisdiction in context of application for judicial review to order compensation in damages. Writ of mandamus also inappli- cable. Declaration that Minister illegally used or sold 1,000 metric tons of snow crab to finance de- partmental research activities and illegally holding proceeds of 2006 sale made. Chiasson v. Canada (Attorney Gen- eral) (May 16, 2008, F.C., Har- rington J., File No. T-1502-06) Order No. 008/224/109 (15 pp.). CIVIL CASES Appeal ONTARIO LEAVE TO APPEAL Leave to appeal terms of adjournment was refused Application for leave to appeal terms of adjournment of motion. Appellant was tenant of property which was subject of power of sale by mortgagee after landlord expe- rienced financial difficulties. Ap- pellant alleged it had made num- ber of repairs to property because landlord failed to do so. Appellant received notice of attornment of rent from city requesting that all rents be paid to city for property tax arrears. Appellant contended that it was facing competing de- mands from city and from mort- gagee. Mortgagee took steps to seek possession of property and payment of outstanding rents. Matter was adjourned on terms which included order that appel- lant pay $74,555 to mortgagee. Appellant contended that there was good reason to doubt correct- ness of motion judge's decision as judge ordered appellant to make payment without considering claim for set-off, based on repairs and maintenance appellant al- leged it had made to property. Leave to appeal refused under rule 62.02(4)(b) of Rules of Civil Pro- cedure (Ont.). Whether to grant adjournment subject to terms and conditions was decision involving exercise of discretion. Here, mo- tions judge found there had not been compliance with order of judge who had adjourned matter on terms and there was no reason to doubt correctness of motion judge's decision. Motions judge had history of case before her and evidence of non-compliance with terms imposed in court order. Further, it could not be said that this case raised issues of public im- portance to litigants of Ontario. Accordingly leave to appeal was refused under rule 62.02(4)(b). Mega International Commercial Bank (Canada) v. 1471556 Ontario Ltd. (June 4, 2008, Ont. Div. Ct., Himel J., File No. 186/08) Order No. 008/164/122 (4 pp.). Bankruptcy And Insolvency PROPERTY Transfer of interest in matrimonial home was "suspicious circumstance" Applicant granted husband line of credit. Husband granted applicant general security agreement over all husband's assets. Wife agreed to guarantee husband's debts and li- abilities to limit of $25,000. Hus- band defaulted on payments. Hus- band and wife transferred interest in matrimonial home to wife alone. Wife granted mortgage to another financial institution. Applicant ob- tained default judgment. Husband made assignment in bankruptcy. Applicant sought order to set aside transfer. Application was allowed. Transfer met prima facie test of being "suspicious circumstance". Husband and wife did not estab- lish there was adequate consider- ation for transfer beyond natural love and affection. Toronto-Dominion Bank v. Gionfriddo (May 28, 2008, Ont.S.C.J., Allen J., File No. 07-CV-345853PD1) Order No. 008/162/178 (3 pp.). Change Of Name GENERAL Father applied for order changing child's surname to hyphenated last names of parties. Mother deliber- ately did not inform father when she went to hospital to give birth. Mother completed statement of live birth under Vital Statistics Act (Ont.), but she left section for fa- ther's information blank, which triggered statutory right of mother to give her surname to child. Fa- ther enjoyed daily access to child. exclude father in naming of child was sexual discrimination Right of mother to arbitrarily