Law Times

Law Times • may 16, 2016 Page 13 www.lawtimesnews.com caselaw 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 COPYRIGHT Federal Court erred in rely- ing on lack of evidence about American law as basis for dismissal of copyright claim Plaintiff owned and published Indian Punjabi-language daily newspaper called "Ajit Daily." Bains defendants owned and published Canadian Pubjabi- language newspaper called "Ajit Weekly." There was litigation between parties over use of Ajit name and partial settlement agreement was reached (PSA). PSA provided for limited license to Bains defendants to use Ajit Daily logo from specified date and for further license to use ap- proved variation of logo under conditions. New York law was to govern PSA. Plaintiff claimed Bains defendants infringed its copyright in Ajit Daily logo. Plaintiff 's claims of copyright infringement were dismissed because of lack of evidence about American law. Plain- tiff appealed and sought to set aside part of judgment dismiss- ing claims against Bains defen- dants. Appeal allowed. Federal Court made legal and review- able factual errors that were central to its decision to dismiss claims against Bains defendants. Claims against Bains defendants were remitted back to Federal Court for re-determination. Federal Court erred in law in relying on lack of evidence about American law as providing basis for dismissal of copyright claim. Lack of evidence about Ameri- can law was not impediment to Federal Court interpreting PSA to adjudicate copyright claim. Canadian conf lict law prin- ciples provide that court faced with interpreting contract that contained choice of foreign law clause should apply domestic law if it had no evidence as to content of foreign law. Fact Bains Defendants' masthead complied with PSA at time of summary trial did not provide basis for dismissal of copyright claim in its entirety. PSA provided only for license to Bains Defendants to use Ajit Daily logo, or varia- tion of it from specified date on- wards and contained no release for acts of infringement that pre-dated that specified date. Choice of forum provision con- tained in PSA did not provide basis for dismissal of copyright claim because parties attorned to jurisdiction of Federal Court for adjudication of copyright claim through their pleadings and no party objected to Fed- eral Court's jurisdiction by rea- son of choice of forum clause in PSA. Federal Court erred in deferring dispute to New York courts on its own motion be- cause court could not of its own motion decline to hear dispute that fell within its jurisdiction based on its belief that another forum was more appropriate. Sadhu Singh Hamdard Trust v. Navsun Holdings Ltd. (March 2, 2016, F.C.A., J.D. Denis Pelletier J.A., David Stra- tas J.A., and Mary J.L. Gleason J.A., A-570-14) Decision at 248 A.C.W.S. (3d) 179 was varied. 264 A.C.W.S. (3d) 478. Federal Court Administrative Law REMEDIES Application to compel process- ing of permanent residence applications under federal skilled workers class was dismissed Applicants' applications for per- manent residence under foreign skilled workers (FSW) class were terminated by s. 87.4 of Immi- gration and Refugee Protection Act (Can.), which eliminated backlog of FSW applications by cancelling those made prior to specified date where no selec- tion decision was made before set date. Protocol was prepared under lead case to promote ex- pediency and better organize litigation. Applicants brought application to compel respon- dent to process applicants' per- manent residence applications under FSW class. Application dismissed. There was no ba- sis on which court could order mandamus based on Protocol alone. Applicants had no vested rights to enforce. Protocol clear- ly contemplated that disposition of their applicants might not be possible. Protocol said nothing specific about what was to hap- pen if law applicable to appli- cants' FSW applications changed before they could be dealt with. Undertaking to be "guided by" decisions in representative cases did not include promise to process applications even if they were validly terminated by Parliament. Section 87.4(2) did not exempt applicants from s. 87.4(1). Applications were ter- minated by operation of law and court could not order manda- mus. Protocol was not final de- termination of application and it contemplated possible dispo- sition of remaining cases. There was nothing to suggest that Bill C-38 or Jobs, Growth and Long- term Prosperity Act (Can.) were not enacted in accordance with normal legislative procedures and safeguards. Doctrine of le- gitimate expectations did not arise. Language of s. 87.4 clearly displaced any legitimate expec- tation that applications would be processed to completion. Proto- col contemplated that it might not be possible to process ap- plications to completion. Public policy considerations were not humanitarian and compassion- ate considerations and court was in no position to second guess or order minister to do any- thing on basis of public policy. Applicants' arguments with re- spect to breach of constitutional rights were already dealt with. Applicants' constitutional and judicial independence argu- ments were masking their real arguments, which were that, in deciding these mandamus ap- plications, court was to ignore impact of s. 87.4. Much of what applicants alleged as abuse of process was no more than asser- tion that protocol should prevail over s. 87.4, humanitarian and compassionate factors should have been applied to avoid im- pact of s. 87.4 in their FSW ap- plications, and that overall re- sult was simply unfair to them. Gong v. Canada (Minister of Citizenship and Immigration) (Feb. 29, 2016, F.C., James Rus- sell J., IMM-6828-12, IMM-1- 13) 264 A.C.W.S. (3d) 471. Constitutional Law CHARTER OF RIGHTS Claims of economic "think tank" against Crown disclosed no reasonable cause of action Plaintiff Committee for Mon- etary and Economic Reform (COMER) was economic "think tank" and individual plaintiffs were members of COMER. Amended statement of claim sought declarations relating to assertions that Bank of Canada Act (BCA) provided for inter- est-free loans to governments for purposes of "human capital expenditures," and defendants failed to fulfill their legal duties to ensure such loans were made, resulting in lower human capital expenditures by governments to detriment of all Canadians. Plaintiffs asserted that these harms were result of Canadian fiscal and monetary policy. Plaintiff sought declaration that taxes imposed to pay for inter- est on deficit and debt to private bankers were illegal and uncon- stitutional. Plaintiffs asserted defendants breached Constitu- tion Act, 1867 (Can.) and s. 3 of Canadian Charter of Rights and Freedoms. Plaintiffs sought damages. Defendants brought motion to strike amended state- ment of claim. Motion granted. It was plain and obvious that claims disclosed no reasonable cause of action and had no rea- sonable prospect of success. Tax- ation issues raised were not justi- ciable. No constitutional princi- ple was breached or principle of taxation without representation. No facts were pleaded to support allegation that MPs were voting blind and were hoodwinked by Minister of Finance. There was nothing in facts as pleaded in amended claim to suggest that Parliament was not fully aware of criticisms levelled by plaintiffs against Minister of Finance and that parliamentarians were not free to question and debate any budget presented from perspec- tive of those criticisms. Plaintiffs were attacking Parliamentary process and jurisprudence was clear that court could not inter- fere with way Parliament went about its business. COMER as unincorporated association had no electoral rights. There were no material facts in amended claim that linked impugned legisla- tive scheme embodied in BCA to effect on plaintiffs. Plaintiffs were asking court for advisory opinion in form of declarations that their view of way BCA and Constitution should be read was correct. Court was not to declare law generally or to give advisory opinion, but was to decide and declare contested legal rights. Committee for Monetary and Economic Reform (COMER) v. R. (Feb. 8, 2016, F.C., James Rus- sell J., T-2010-11) 264 A.C.W.S. (3d) 381. Industrial and Intellectual Property TRADEMARKS Decision expunging trademark in association with computer software programs overturned on appeal Appellant registered trademark in association with computer software programs. Appellant used to sell its software on disks, but now clients could obtain access to software over Inter- net from appellant's computer server after installing icon on their computers. Respondent asserted that appellant trans- fer of property was not proved. Respondent's application to ex- punge applicant's mark from register was granted. Appellant appealed. Appeal allowed. There was no real change in what ap- plicant was selling. Change relat- ed to means by which software was transferred to clients, not to actual nature of applicant's use of its trademark. Appellant showed compliance with legal requirements. Even though ap- pellant used to sell its software on disks, it was always really selling license to use software, which was intangible good. Ap- pellant did not actually sell soft- ware itself, but sold entitlement to obtain access to it by way of licenses. Evidence showed that appellant's trademark was used in manner that showed association between mark and goods sold, which were licenses. Appellant showed there was transfer of property in ware and mark was visible to purchasers before, during and after transfer. Specialty Software Inc. v. Be- watec Kommunikationstech- nik GmbH (Feb. 18, 2016, F.C., James W. O'Reilly J., T-2496-14) 264 A.C.W.S. (3d) 481. Ontario Civil Cases Administrative Law DUTY TO ACT FAIRLY Imposition of sanctions on basketball officials set aside CG was voluntary head coach of high school basketball team while JG and N were voluntary assistant coaches. Association was voluntary not-for-profit organization for basketball of- ficials in province. CG and JG were members of association in their capacity as officials. Team coached by CG, JG, and N lost playoff game in final seconds, resulting in team's elimination from playoffs. CG, JG, and N blamed referees for calling dis- proportionate number of pen- alties against team in last 90 seconds of game. Committee of association conducted hearing by conference call after provid- ing CG, JG, and N with copies of reports from game officials but not initial complaint. N and official H were not able to par- ticipate. Committee considered information from H that had not been disclosed. Association imposed sanctions on CG, JG, and N based on committee's findings. CG and JG appealed, and all sanction periods were reduced by one-half. CG, JG, and N nonetheless brought ap- plication for judicial review. Ap- plication granted. Association's decision imposing sanctions on CG, JG, and N was set aside. As- sociation's disciplinary proce- dure had to afford CG, JG, and N natural justice and procedural fairness in order to be valid. Authorities indicated proceed- ings that involved loss of per- son's ability to earn income at- tracted highest level of fairness. In case of CG and JG, sanctions deprived them of opportunity to earn income by officiating basketball games for significant periods of time. Association's notice of hearing had not com- municated seriousness of mat- ter. Even minutes of conference call did not indicate that serious- ness of matter had been com- municated. N had not received notice of hearing directly. CG, JG, and N had never been pro- vided with initial complaint or

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