Law Times

Page 14 April 11, 2016 • lAw Times www.lawtimesnews.com CASELAW Supreme Court of Canada Constitutional Law REMEDIES Extension of declaration of invalidity granted Court declared ss. 241(b) and 14 of Criminal Code (Can.) of no force and effect to extent that they prohibited physician-assist- ed death in certain circumstanc- es. Court granted 12-month suspension of declaration of invalidity. Attorney-General of Canada applied for four-month extension of declaration of inva- lidity. Extension granted for four months. Interruption of legisla- tive work due to federal election justified extension. Exemptions to extension granted to Quebec at its request and individuals who apply to superior court for relief. Carter v. Canada (Attorney General) (Jan. 15, 2016, S.C.C., Abella J., Karakatsanis J., Wag- ner J., Gascon J., Côté J., McLach- lin C.J., Cromwell J., Moldaver J., and Brown J., 35591) 263 A.C.W.S. (3d) 83. Federal Court of Appeal Immigration SELECTION AND ADMISSION Foreign Investment Promotion and Protection Agreement could not amend act of Parliament Plaintiff applied for permanent residence as investor. Before ap- plication was processed Gov- ernment of Canada introduced legislation terminating pending investor applications. Legislation provided that applicants had no legal recourse against Govern- ment of Canada in respect of terminated applications. Plaintiff brought proposed class action claiming compensation for out- of-pocket expenses and damages for loss of opportunity. Defen- dant brought motion to strike out claim. Motion was granted. Plaintiff appealed. Appeal dis- missed. International treaties and conventions were not part of Canadian law unless they had been implemented by statute. Foreign Investment Promotion and Protection Agreement be- tween Canada and Russia had not been implemented by any statute and was not part of do- mestic law of Canada and could not amend act of Parliament. Sin v. R. (Jan. 20, 2016, F.C.A., Wyman W. Webb J.A., Richard Boivin J.A., and Yves de Montig- ny J.A., A-142-15) Decision at 250 A.C.W.S. (3d) 564 was affirmed. 263 A.C.W.S. (3d) 184. Industrial and Intellectual Property TRADEMARKS Evidence of prior use not suf- ficient to demonstrate trademark had acquired distinctiveness MC Imports (MC) imports and sells Filipino food products un- der trademark LINGAYEN, a municipality in Philippines known for bagoong shrimp paste products. It commenced motion for summary trial relat- ing to alleged infringement of trademark by AFOD, which im- ports food products from Phil- ippines. AFOD challenged va- lidity of trademark registration under Trade-marks Act (Can.). Trademark is not registrable if "either clearly descriptive or de- ceptively misdescriptive ... of the character or quality of the goods or services in association with which it is used or proposed to be used ... or their place of ori- gin" except where trademark has become distinctive due to use. MC began using LINGAY- EN in Canada in association with its wares in 1975 and there has been continuous use since that time. Federal Court judge granted motion for summary trial but found trademark not registrable and therefore invalid. He found it was clearly descrip- tive of place of origin of wares in relation to which it was used and was not distinctive. MC's appeal dismissed. Correct approach in context of place of origin not de- pendent on knowledge of average Canadian consumer. Whether geographic name is unregistrable determined by determining that trademark is geographical name; by determining place of origin of wares and by assessing assertions of prior use. Determining wheth- er impugned trademark is geo- graphic name may require resort to consumer perceptions where name has other meanings. This ought to be considered from per- spective of ordinary consumer of products with which trademark is associated. If wares or services originate in place referred to by trademark, then trademark is clearly descriptive of place of origin. If not, further analysis required to determine whether it is deceptively so. Descriptive trademark may become dis- tinctive despite descriptiveness through use. If it has become dis- tinctive, it is registrable despite being descriptive. This requires evidence that from perspective of relevant public, people who actu- ally use product, trademark has become distinctive of that prod- uct. Lingayen is municipality in Philippines and MC's goods originated in Lingayen. Trade- mark clearly described place of origin of goods with which it was associated. MC's evidence of prior use not sufficient to meet burden of demonstrating it had acquired distinctiveness. Trade- mark's registration was invalid. MC Imports Inc. v. AFOD Ltd. (Feb. 23, 2016, F.C.A., Johanne Trudel J.A., A.F. Scott J.A., and Yves de Montigny J.A., A-569- 14) Decision at 247 A.C.W.S. (3d) 924 was affirmed. 263 A.C.W.S. (3d) 194. Federal Court Human Rights Legislation JUDICIAL REVIEW Employer followed law on employment equity Employee was able-bodied white man who worked for employer until he was deemed unfit to work. Employee claimed that em- ployer discriminated against him because he did not fall within one of designated groups for employ- ment equity under employer's reverse discrimination policy. Employee filed complaint with Canadian Human Rights Com- mission alleging discrimination on basis of gender, ethnicity and skin colour. Commission reject- ed claim on basis that allegations of race, colour and sex were not supported. Commission recom- mended that complaint be dis- missed. Employee applied for judicial review. Application dis- missed. Portions of employee's affidavit were argumentative and were struck out. New evidence presented by employee did not meet test for admission on judi- cial review. Applicable standard of review was reasonableness. Commission considered argu- ments of parties and properly weighed evidence before it in its screening role. Employment equity criteria could be used in proper cases in work force ad- justment situations and em- ployer used Employment Equity Act (Can.) to govern its employ- ment equity policies. Evidence as whole supported commission's finding that claim of discrimi- nation was not made out by em- ployee where employer followed law on employment equity. Em- ployment equity criteria might not determine outcome of job posting, as employer could hire non-designated employee or seek exception to employment equity. Commission addressed issues of over-representation and failing to verify self-identification and came to reasonable conclusions. Commission's decision fell with- in range of possible, acceptable outcomes defensible in respect of facts and law and was reasonable. Bate v. Canada Revenue Agen- cy (Jan. 25, 2016, F.C., John A. O'Keefe J., T-71-15) 263 A.C.W.S. (3d) 170. Tax Court of Canada Employment Insurance CONTRIBUTIONS "Placement or employment agency" in Employment Insurance Act (Can.) given same mean- ing as in s. 34(1) of Canada Pension Plan Regulations Appellant corporation was in business of providing various social services workers to tem- porarily work with group homes, schools and families to tempo- rarily so clients could meet their staffing needs. Workers were paid by corporation based on set hourly amount without regard to what corporation was paid by its clients, and did not pay fee to cor- poration. Ruling was made un- der Employment Insurance Act (Can.) that one of corporation's workers was engaged in insur- able employment on basis that corporation was "placement or employment agency." Corpora- tion appealed. Appeal dismissed. Although there was no definition of "placement or employment agency" in Act or its regulations, it was given same meaning as in s. 34(1) of Canada Pension Plan Regulations. Accordingly, cor- poration's argument, that it was not placement or employment agency because it was not paid fee by its workers, failed. With exception of lack of fixed hours, and of right of corporation to assign work hours to worker, corporation's control over its workers, which included control of worker by corporation's cli- ents, was consistent with terms of employment under contract of service. Corporation placed its worker with its clients to provide services to them, corporation paid worker for her services, and worker performed those services under clients' direction and con- trol, so appeal was dismissed. Wholistic Child and Fam- ily Services Inc. v. Minister of National Revenue (Feb. 9, 2016, T.C.C. [Employment Insur- ance], Patrick Boyle J., 2014- 2870(EI), 2014-2871(CPP)) 263 A.C.W.S. (3d) 232. Ontario Civil Cases Arbitration PROCEDURE Arbitrator erred in law in refusing to apply doctrine of abuse of process Claimant was passenger in ve- hicle driven by father that was in- volved in motor vehicle accident. Father's vehicle was previously insured by applicant insurer. Ap- plicant took position that as of date of accident, policy had been cancelled for non-payment. Fa- ther was subsequently convicted of operating motor vehicle with- out insurance. Claimant sus- tained injuries in accident and applied to applicant for accident benefits under policy issued to claimant's grandparents. Issue of whether applicant insurer or respondent insurer was liable to remit payment of accident ben- efits was remitted to arbitration. Applicant raised preliminary is- sue of whether doctrine of abuse of process applied to preclude respondent from arguing that father was insured person as of date of accident. Arbitrator de- termined that abuse of process doctrine did not apply to arbitra- tion and respondent was permit- ted to lead evidence and argue that father was insured person as of date of accident. Applicant applied to overturn arbitrator's decision. Application granted. Applicable standard of review was correctness. Onus on party resisting application of s. 22.1 of Evidence Act (Ont.), which ren- dered proof of conviction admis- sible in subsequent proceeding, was to tender admissible evi- dence to contrary. Applicant only had to prove conviction itself. Arbitrator conf lated onus under s. 22.1 of Act and committed er- ror in law. Onus was on respon- dent to lead evidence to contrary but there was no evidence to con- trary at all. Arbitrator erred in law in refusing to apply doctrine of abuse of process. Fairness did not dictate that administration of justice would be better served by permitting respondent to re- litigate facts surrounding convic- tion during arbitration. Arbitra- tor's decision was overturned and respondent was precluded from leading any evidence and/or re- litigating father's conviction for operating motor vehicle without insurance on date of accident. Intact Insurance Co. v. Feder- ated Insurance Co. of Canada (Feb. 2, 2016, Ont. S.C.J., Dia- mond J., CV-15-540959) 263 A.C.W.S. (3d) 16. Limitations REAL PROPERTY Fresh cause of action accrued every day that tenant failed to carry on its business in accordance with covenant Landlord and tenant were par- ties to long-term lease where tenant covenanted to pay rent, to occupy premises, to operate its business continuously and to restore premises at end of lease. Tenant paid rent for duration of lease but it did not operate busi- ness continuously and it failed to restore premises when lease ended. Landlord brought claim for damages for tenant's breaches 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.

• Cover