Law Times

Page 14 March 21, 2016 • Law TiMes 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 Administrative Law DUTY TO ACT FAIRLY Cancellation of security clearance upheld on judicial review and further appeal Appellant, licensed aeronau- tics technician and mechanic, required access to restricted areas available only to em- ployees with security clear- ance granted by Minister of Transport, Infrastructure and Communities of Canada un- der Aeronautics Act (Can.). Minister revoked appellant's security clearance follow- ing RCMP report regard- ing importation of narcot- ics. In absence of sufficient evidence, RCMP did not lay criminal charges. Aer re- ceiving submissions from appellant, Transportation Security Clearance Advisory Body recommended cancel- lation of appellant's security clearance. Minister followed recommendation. Federal Court dismissed appellant's application for judicial re- view, finding that Minister's decision met requirements for procedural fairness and was reasonable on merits. Appel- lant's appeal dismissed. Deci- sion is of enormous personal importance where person's employment is dependent on maintaining security clear- ance. Act and Canadian Avia- tion Security Regulations give Minister great deal of discre- tion, providing that Minister may grant security clearance to person considered fit from transportation security per- spective. Nature of decision and statutory scheme mili- tate towards reduced levels of procedural fairness. Minister administered security clear- ance with assistance of Ad- visory Body in accordance with Transportation Security Clearance Program Policy, which sets out process. Deci- sion was important both to individuals affected and to public interest in safety and security. Appellant knew case against him, was aware of Minister's concerns and evidence that could ground decision to revoke security clearance. Minister and Advi- sory Board weighed evidence and considered appellant's re- sponse. Neither Minister nor Advisory board was under obligation to hold interview with appellant. Federal Court was entitled to reject appel- lant's new evidence. Judicial review of administrative deci- sions are to proceed on basis of information before deci- sion-maker unless evidence relates to procedural fairness or decision-maker's jurisdic- tion. Minister's decision on merits was reasonable and supported by evidence. Minis- ter considered RCMP investi- gation results, Advisory Com- mittee's recommendation and appellant's submissions. Facts were reviewed in light of possibility of unlawful in- terference with civil aviation. Henri v. Canada (Attorney General) (Feb. 8, 2016, F.C.A., Johanne Trudel J.A., Richard Boivin J.A., and Yves de Mon- tigny J.A., A-574-14) Decision at 251 A.C.W.S. (3d) 366 was af- firmed. 262 A.C.W.S. (3d) 279. Civil Procedure COSTS Applicants not entitled to solicitor-client costs Governor in Council appoint- ed former advocate of Quebec and member of Federal Court of Appeal to Supreme Court of Canada to occupy one of three seats reserved for per- sons appointed from among judges of Court of Appeal or of Superior Court of Province of Quebec or from among ad- vocates of Quebec. Applicants filed joint notice of applica- tion in Federal Court claiming that judge of Federal Court or Federal Court of Appeal was ineligible, pursuant to s. 6 of Supreme Court Act (Can.), to be appointed to one of three Quebec seats and they sought to have judge's appointment set aside. Governor in Coun- cil referred matter to Supreme Court. Applicants consented to stay of joint application and were granted intervener status at reference. Supreme Court ruled that former ad- vocate of Quebec, including former advocate appointed to Federal Court, was ineli- gible to occupy one of Quebec seats on Supreme Court and judge's appointment was de- termined to be invalid. Appli- cants sought leave to issue no- tice of discontinuance of joint application and they sought solicitor-client costs. Federal Court judge found that there was no justification for award of solicitor-client costs and single award of costs fixed at $5,000 was made in favour of both applicants. Applicants appealed. Appeal dismissed. Any award of solicitor-client costs would be limited to law- yers' regular hourly rate. In determining whether appli- cants satisfied conditions for award of solicitor-client costs, biggest hurdle was that they were not successful in appli- cation. Joint application was found to have been derailed and supplanted by refer- ence and it was dismissed for mootness. Fact joint applica- tion set into motion series of events that led to outcome ap- plicants sought did not make them successful litigants. Joint application was dismissed. Right to solicitor-client costs accrued only to successful litigants and applicants did not satisfy that test. Appli- cants were not entitled to spe- cial costs pursuant to Federal Court's discretion over award of costs. Applicants were not successful. Issues raised were of significant importance but interpretation of ss. 5 and 6 of Act did not have widespread impact. Applicants had not established that it would have been impossible to effectively pursue litigation with private means. Applicants had not established that they came within class of litigants who might be awarded solicitor- client costs in public inter- est constitutional litigation. Galati v. Harper (Feb. 8, 2016, F.C.A., Pelletier J.A., David Stra- tas J.A., and Gleason J.A., A-541- 14) Decision at 247 A.C.W.S. (3d) 772 was affirmed. 262 A.C.W.S. (3d) 307. Parole MANDATORY SUPERVISION Deprivation of liberty was not contrary to principles of fundamental justice Applicant fatally shot his fa- ther and stabbed his mother when he was 15 years old. Applicant was released from prison on full parole in 1983, aer which he pursued suc- cessful career as jazz musician. Applicant was granted parole reduced status in 1991, requir- ing him to report to his parole officer in writing once per year. In 1996, Parole Board passed amendment requiring per- sons on PRS to report to their parole supervisor as instruct- ed. Applicant was required to report to his parole supervisor in person every three months. Applicant applied for judicial review of board's decision that altered parole conditions of offenders placed on PRS, alleging that amendment in- fringed his rights under s. 7 of Canadian Charter of Rights and Freedoms. Application was dismissed on basis that applicant failed to establish liberty interest that had been curtailed as result of deci- sion. Applicant appealed. Ap- peal dismissed. Flowing from judge's finding that "inevitable consequence" of decision was that applicant must report face-to-face quarterly was that failure to report could result in suspension of his parole and his re-committal to custo- dy. at consequence, coupled with increased frequency of required reporting, deprived applicant of his liberty. How- ever, deprivation of liberty was not contrary to principles of fundamental justice in s. 7 of Charter. Nature of change to reporting requirements did not violate Charter because change was directly related to public interest in monitor- ing ongoing risk posed by offenders in community on PRS. Decision struck right balance between interests of society and offenders by al- lowing parole supervisors to determine reporting frequen- cy for individual offenders based on their circumstances. Fisher v. Canada (Attorney General) (May. 19, 2015, F.C.A., Marc Noël C.J., Eleanor R. Daw- son J.A., and Johanne Trudel J.A., A-396-13) Decision at 110 W.C.B. (2d) 696 was affirmed. 127 W.C.B. (2d) 159. Federal Court Industrial and Intellectual Property TRADEMARKS Plaintiff 's trademarks had little inherent distinctive- ness and were afforded nar- row ambit of protection Parties were commercial program providers. Plain- tiff approached defendant to propose vendor relationship which defendant declined. Email exchanges between parties revealed to defendant WORKPERKS and AD- PERKS marks, plaintiff 's sys- tem for managing discount programs, and plaintiff 's cus- tomer employee groups and ass o ciation/memb er-bas ed groups and corresponding number of end-users. Plain- tiff claimed information was confidential, which defendant disputed. Plaintiff claimed defendant infringed its rights in family of registered trade- marks endings in "PERKS" (VI trademarks) by using reg- istered trademark "PERKOP- OLIS." Plaintiff asserted defendants made false and misleading statements dis- crediting plaintiff 's business, committed tort of passing off, and depreciated their good- will. Action dismissed. Claim that defendants disseminated false and misleading state- ments regarding plaintiff 's business and services tend- ing to discredit plaintiff was dismissed. Evidence did not show statements made by cor- porate defendant with respect to deficiencies in plaintiff 's infrastructure to provide cus- tomer support or concerning insufficient privacy and secu- rity of personal information. ere was no evidence of any connection of misleading or false statements made by de- fendants to potential or ac- tual customers of plaintiff in relation to parties' trademarks in issue. Claim in relation to depreciation of goodwill was dismissed. Plaintiff acknowl- edged that only alleged use by defendants of any of plaintiff 's trademarks was use of "Mem- ber Perks" on web site, which use was not use as trademark for purpose of distinguishing defendant's wares or services from others, and could not constitute basis for valid claim with respect to depreciation of goodwill. Speculative na- ture of plaintiff 's evidence of damages was insufficient to support valid of passing off. ere was no likelihood of de- ception through misrepresen- tation. ere was little resem- blance in either appearance or sound or in idea suggested by marks. Each of plaintiff 's trademarks was combination of particular class of end us- ers and word perks. Defen- dant's use of "perk" suggested type of benefit program but had little obvious suggestion as to whom or for what perks were offered and did not sug- gest any of ideas associated with plaintiff 's trademarks. Plaintiff 's trademarks had little inherent distinctive- ness and were afforded nar- row ambit of protection. Evidence of confusion was insufficient to establish that casual customer somewhat in hurry would confuse marks. Venngo Inc. v. Concierge Con- nection Inc. (Dec. 3, 2015, F.C., Michael D. Manson J., T-467-11) 262 A.C.W.S. (3d) 465. Ontario Civil Cases Appeal STATED CASE Necessary preconditions for stated case were absent Applicant lawyer was involved in contentious discipline pro- ceedings with respondent Law Society of Upper Canada for several years. Proceedings resulted in findings of profes- sional misconduct and the revocation of lawyer's licence to practice. Lawyer brought motion requesting leave to have special case determined in first instance by Court of Appeal challenging order of

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