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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Evidence HEARSAY Statements admissible under principled approach Accused convicted of first de- gree murder following shooting death of E. Crown alleged that accused shot E in retaliation for previous stabbing incident. Trial judge admitted statements made by E to mother concerning ear- lier incidents. Accused's appeal to Ontario Court of Appeal dis- missed. Court of Appeal divided on question of admissibility of E's out-of-court statements. Accused appealed as of right. Appeal dis- missed. E's statements admissible under principled approach to hearsay. Crown established twin criteria of necessity and reliabil- ity. Trial judge applied correct test for determining threshold re- liability. Circumstantial evidence here to support inference that E had no motive to lie to mother. Trial judge considered relevant factors in determining whether E had motive to fabricate, includ- ing nature of relationship with mother and context in which statements made. Trial judge cor- rect in finding that difficulties with evidence of mother, includ- ing inconsistencies and evidence that she received information from others about stabbing inci- dent, were matters properly left to ultimate trier of fact as mother available to be cross-examined. Trial judge's admissibility ruling reasonable and entitled to defer- ence. R. v. Blackman (June 26, 2008, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, De- schamps, Fish, Abella, Char- ron and Rothstein JJ., File No. 31885) Appeal from 215 C.C.C. (3d) 524 dismissed. Order No. 008/184/002 (34 pp.). FEDERAL COURT OF APPEAL Human Rights Legislation HUMAN RIGHTS COMMISSION Appellant brought complaint that H.C. had acted contrary to s. 5 of Canadian Human Rights Act, by regulating herbal products in Commission lacked jurisdiction to deal with complaint discriminatory way, according to ethnic origin. Essence of com- plaint was that H.C. had in ef- fect discriminated against com- plainants by enforcing Food and Drugs Act (Can.), against their company, but not against other businesses who were deserving of same treatment. This differential treatment was said to be based on ethnicity. Applications judge cor- rectly held that commission did not have jurisdiction to deal with complaint. Enforcement actions which formed object of com- plaint were not "services" within meaning of s. 5. Canada (Attorney General) v. Watkin (May 2, 2008, F.C.A., Nadon, Ryer and Noel JJ.A., File No. A-345-07) Appeal from 159 A.C.W.S. (3d) 243 dismissed. Order No. 008/133/079 (18 pp.). Natural Resources OIL AND GAS Mackenzie Gathering System was subject to Canada Oil and Gas Operations Act September 8, 2008 • Law times COURT DECISIONS CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: ainmaker_LT_June2_08.indd 1 5/28/08 10:43:29 AM i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. of expenses for children. 2000 amending agreement deleted shared expense obligation. Judge concluded shared expense obliga- tion was not allowance because amount was not limited and predetermined. Appeal was dis- missed. Evidence was incapable of establishing existence of agree- ment as to how amount of shared expenses obligation was to be as- certained. Callwood v. Canada (Apr. 3, 2008, F.C.A., Sexton, Sharlow and Pel- letier JJ.A., File No. A-209-07) Appeal from 37 R.F.L. (6th) 456; 2007 D.T.C. 709; [2007] 3 C.T.C. 2540 dismissed. Order No. 008/112/060 (8 pp.). FEDERAL COURT Human Rights Legislation Appeal from decision of board dismissing application to make pipeline project when construct- ed subject to Part IV of National Energy Board Act ("NEBA"). Mackenzie Gathering System ("MGS") in Northwest Territo- ries collected and transported gas for eventual transport to Alberta. MGS was being constructed pursuant to approvals obtained under Canada Oil and Gas Op- erations Act ("COGOA"). Board concluded that NEBA applied to MGS because it extended beyond bounds of Territories, and that project could not be authorized under one piece of legislation and be regulated under another. Ap- peal dismissed. Board correctly determined that MGS was sub- ject to COGOA and not NEBA. Anadarko Canada Corp. v. Can- ada (National Energy Board) (Apr. 22, 2008, F.C.A., Lin- den, Nadon and Pelletier JJ.A., File No. A-420-06) Order No. 008/126/131 (13 pp.). Taxation Appellant's income tax appeal for 2000 was dismissed. Appeal for 2001 was allowed but only to extent of requiring appellant's income to be reduced by $533 rather than by $20,533 claimed. 1997 separation agreement re- quired husband to pay child sup- port of $133 per week for each of three children and provided for shared expense obligation re- quiring husband to share burden INCOME TAX Agreement as to determination of shared child support expenses not established HUMAN RIGHTS COMMISSION No breach of procedural fairness in referral of discrimination complaint to tribunal Minister of Health from issuing notice of compliance. Competi- tor held two current patents re- lating to use of pantoprazole for treating bacterial infections. Earlier patent relating to pan- toprazole had expired. Pharma- ceutical company proposed to manufacture and market panto- prazole for purposes other than treating bacterial infections. Competitor sought to prohibit Minister of Health from issu- ing notice of compliance until after expiration of current pat- ents. Motion granted. Similar application against another pharmaceutical company had already been dismissed. Allow- ing competitor to try to obtain different result here would have amounted to abuse of process. Competitor was not prejudiced by lack of opportunity to cross- examine some of pharmaceutical company's experts. Nycomed Canada Inc. v. Novop- harm Ltd. (Apr. 8, 2008, F.C., Lafreniere Prothonotary , File No. T-1836-06) Order No. 008/112/058 (22 pp.). Application for judicial review of decision of commission to refer complaint of sexual discrimina- tion to conciliation and failing settlement to tribunal. Com- plainant submitted application for employment with union re- sponsible for hiring labour on behalf of employee association. Complainant failed pre-employ- ment screening test consisting of repeatedly lifting box. Appli- cation dismissed. There was no breach of procedural fairness. Decision was taken on fair foun- dation. Complainant failed to es- tablish that outcome of investiga- tion was predetermined because investigator had mind so closed that any submissions would be futile. Complainant was not de- prived of meaningful opportunity to know case she had to meet and to present her views fully. Refer- ral to tribunal was one of possible outcomes based on facts of case and law. Decision contained no reviewable error. Commission's conclusion regarding indirect/ adverse effect discrimination was defensible outcome. Halifax Employers Assn. v. Tucker (Apr. 21, 2008, F.C., Gauthier J., File No. T-2262-06) Order No. 008/126/109 (32 pp.). Intellectual Property Industrial And Motion by pharmaceutical com- pany for dismissal of competitor's application for order prohibiting PATENTS Application dismissed as abuse of process www.lawtimesnews.com CIVIL CASES Administrative Law ONTARIO BOARDS AND TRIBUNALS Three horses tested positive for drug. Trainer was suspended. Commission dismissed appli- cation for order requiring re- spondent to continue to accept horses owned by applicant in races. Application for judicial review was dismissed. Commis- sion erred in stating burden was higher than balance of prob- abilities. Test articulated placed greater restriction on WEG's rights which resulted in no in- justice to applicant. Commis- sion had discretion to impose penalty for conduct injurious to sport of horse racing. Commis- sion did not abdicate regulatory mandate. Commission consid- ered public interest as required. Decision was reasonable. Friedman v. Ontario Racing Commission (Apr. 18, 2008, Ont. Div. Ct., Swinton, Low and Echlin JJ., File No. 512/07) Order No. 008/121/046 (9 pp.). Commission did not abdicate regulatory mandate Contracts FORMATION Plaintiff entitled to specific performance of agreement to purchase shares mance of share purchase agree- ment. Defendant S. Ltd. entered into negotiations with plaintiff U. Inc. for purchase of shares of B.. Draft share purchase agreement was sent to U. Inc.. B. announced that it decided to list shares without offering new shares. S. Inc. refused to buy shares without renegotiat- ing price. Application granted. Plaintiff U. Inc. was granted order for specific performance of agreement to purchase shares. It was ordered that S. Ltd. pay plaintiff amount equal to total amount of dividends paid on shares. S. Ltd. unconditionally agreed to sell 100,000 common shares of B. to plaintiff for $50 per share. Reasonable would conclude that parties in- tended to contract. Both par- ties committed themselves to essential and material terms of agreement and both reasonably expected to be bound to terms. UBS Securities Canada Inc. v. Sands Brothers Canada Ltd. (Apr. 30, 2008, Ont.S.C.J., Pepall J., File No. 06-CL-6794) Order No. 008/127/022 (23 pp.). person Action for damages for breach of consulting agreement. Plain- tiff and defendant entered into acquisition agreement and consulting agreement whereby plaintiff was to provide services to defendant over three-year pe- riod. Plaintiff stopped providing services to defendants approxi- mately one year later. Plaintiff sought remaining 24 months of payments under consult- ing agreement. Action allowed. Plaintiff was awarded $120,000 plus prejudgment interest repre- senting 12 months of fees under contract. Defendant repudiated parties' agreement by funda- mentally changing plaintiff's re- sponsibilities in company in way that undermined his position and status. Plaintiff was not dis- missed for cause. Parties intend- ed that plaintiff's minimum en- titlement in case of relationship breaking down was payment of 12 months, and it was implicit that minimum entitlement was not subject to mitigation. Eady v. TrekLogic Technologies Inc. (Apr. 30, 2008, Ont.S.C.J., Herman J., File No. 04-CV- 280897 CM3) Order No. 008/127/046 (21 pp.). PERFORMANCE AND BREACH Defendant repudiated consulting agreement Evidence Application for specific perfor- Plaintiff brought action against HEARSAY Proposed evidence failed both reliability and necessity tests

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