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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Civil Procedure COSTS No error in award of costs to self-represented respondent Application judge found that respondent's language rights were infringed under s. 10 of Air Canada Public Participation Act (Can.), and ordered appellant to send respondent formal letter apologiz- ing for violation of his language rights and to pay self-represent- ed respondent $5,375, including $1,875, with difference of $3,500 awarded for his review and analysis of law. Assuming without deciding that appellant was entitled to due diligence defence, appellant failed to discharge burden of proving due diligence. No error in judge's exercise of discretion in awarding $5,375 which would warrant or require intervention. Respondent awarded further $7,284 for costs of defending appeal. Thibodeau v. Air Canada (Mar. 22, 2007, F.C.A., Desjardins, Le- tourneau and Noel JJ.A., File No. A-442-05; A-630-05) Appeal from 152 A.C.W.S. (3d) 30; 284 F.T.R. 79 dismissed. Order No. 008/105/075 (11 pp.). Human Rights Legislation Tribunal erred in upholding 1983 complaint of wage discrimination brought by certain female employ- ees at CP. Tribunal had concluded that CP violated s. 11 of Canadian Human Rights Act by paying its employees in male-dominated DISCRIMINATION Choice of comparator group in wage discrimination complaint was unreasonable Postal Operations Group ("PO Group") more than its employ- ees in female-dominated Clerical and Regulatory Group for work of equal value and required CP to pay compensation of $300 million to rectify pay discrimina- tion. Tribunal erred in applying standard required to merely refer case from commission to tribunal, namely reasonable basis, instead of ordinary civil burden of proof with respect to liability on pay equity complainant, namely, balance of probabilities. Tribunal unreason- ably ignored factual reality that largest group of women at CP were 10,000 women working as mail sorters within PO Group, and that these 10,000 women were best paid unionized employees at CP. It was unreasonable for tribu- nal to choose comparator group that masked 10,000 women, and in fact, considered them men for purposes of s. 11. Since tribunal's choice of comparator group was unreasonable and since tribunal applied wrong standard of proof, no prima facie discrimination was established so that issue of legal pre- sumption of gender-based discrimi- nation did not arise. Therefore, tribunal's decision to award dam- ages was incorrect and unreason- able. Finally, length of tribunal hearing of 11 years was wrong and unreasonable and offended public conscience. Judicial review allowed. Matter referred back to tribunal with direction that complaint be dismissed. Canada Post Corp. v. P.S.A.C. (Feb. 21, 2008, F.C.A., Kelen J., File No. T-1750-05; T-1989-05) Or- der No. 008/063/125 (139 pp.). Intellectual Property Industrial And DD LT RXQTHZC-08 Promo ad 5/29/08 11:17 AM Page 1 PATENTS Judge mischaracterized scope of disclosure requirement under s. 27(3) of Patent Act (Can.) JUNE 23, 2008 / LAW TIMES COURT DECISIONS ainmaker_LT_June2_08.indd 1 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: 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. Applications judge erred in P.'s application for order prohibiting Minister from issuing Notice of Compliance to R. with respect to atorvastatin calcium until after expiration of 546 patent. Applications judge was incorrect in dismissing P.'s application on basis of insufficiency. He mis- characterized scope of disclosure requirement under s. 27(3) of Patent Act (Can.) and, in so doing, allowed R. to attack, through alternative means, patent's utility, novelty and/or obviousness. His reasoning was inconsistent with purpose of s. 27(3) of Patent Act. Minister was prohibited from issuing Notice of Compliance to R. for atorvastation calcium until after expiry of 546 patent. Pfizer Canada Inc. v. Canada (Minister of Health) (Mar. 20, 2008, F.C.A., Linden, Nadon and Ryer JJ.A., File No. A-79-07) Ap- peal from 155 A.C.W.S. (3d) 429; 56 C.P.R. (4th) 96 allowed. Order No. 008/105/128 (37 pp.). Social Welfare CANADA PENSION PLAN Board misapplied test in application for disability pension Board ruled respondent lished respondent was incapable of expressing intention to make appli- cation for disability pension from specified date to hearing. Applicant argued board misapplied legal test. Application for judicial review was allowed. Respondent's activities could have assisted in determin- ing whether legal test was prop- erly applied, but were not addressed by board. Facts were before board but there was no analysis made of them. Board's failure to consider activities of respondent resulted in misapplication of test. Dissenting judge determined test was not mis- applied. Canada (Attorney General) v. Daniel- son (Feb. 28, 2008, F.C.A., Decary, estab- Letourneau JJ.A. and dissenting - Sharlow J.A., File No. A-368-07) Order No. 008/073/164 (6 pp.). FEDERAL COURT Immigration Applicants sought deferral of removal because child was half way through school year and there was outstanding motion to re-open refugee hearing. Officer refused applicant's request for deferral of removal. Officer con- sidered impact of removal on child and on Canadian born child. School year was over and motion to re-open refugee hear- ing was denied. Application for judicial review was dismissed. Application was moot. Reasons for seeking removal no longer existed. There were no live issues between parties. Discretion was not exercised to hear case that was moot. Alexander v. Canada (Minister of Public Safety and Emergency Pre- paredness) (Feb. 28, 2008, F.C., O'Keefe J., File No. IMM-990- 07) Order No. 008/073/151 (11 pp.). EXCLUSION AND EXPULSION Application for review of refusal to defer removal was moot REFUGEE STATUS Board did not err by failing to provide separate reasons for particular conclusion separate reasons for conclusion applicant was not person entitled to protection. Because board found no adequate proof of reasonable grounds of fear on Convention grounds, it followed there were none in respect of claim under s. 97 of Immigration and Refugee Protection Act (Can.). Kathiran v. Canada (Minister of Citizenship and Immigration) (Feb. 26, 2008, F.C., Strayer D.J., File No. IMM-1199-06) Order No. 008/073/158 (8 pp.). Applicant was denied refugee sta- tus. Board did not find applicant credible. Board gave no probative value to documents. Application for judicial review was dismissed. Board's credibility findings were not patently unreasonable. It was not error of law not to provide Analysis of Refugee Protection Division was flawed and incomplete Applicant was kidnapped in country of origin. Applicant moved to Syria. Applicant married and moved to Australia with husband. Husband was abusive to applicant while in Australia. Applicant and husband came to Canada to attend wedding. Applicant left husband and intend- ed to stay in Canada. Husband returned to Australia. Applicant was granted provisional residence in Australia. Husband's support for application for permanent resi- dence in Australia was withdrawn. Applicant withdrew application for permanent residence in Australia. Applicant no longer had status in Australia. Applicant was denied refugee status. Refugee Protection Division determined applicant was jurisdiction shopping. Application for judicial review was allowed. Refugee Protection Division erred by conducting flawed and incom- plete analysis to determine appli- cant was excluded. Binyamin v. Canada (Minister of Citizenship and Immigration) (Feb. 28, 2008, F.C., Gibson J., File No. IMM-2018-07) Order No. 008/073/152 (13 pp.). Applicants were denied refugee sta- tus. Refugee Protection Division Errors of Refugee Protection Division in denial of refugee status were not fatal with summer inspired Corporate Promotional Products PRESENTING NEW EVIDENCE FOR A FUN FILLED SUMMER Our 2008 summer inspired Pomotional Products Brochure is now available. Contact us to receive your copy. yourONE source supplier for C U PREFERRED SUPPLIER Office & Furniture Products • Corporate Promotional Products • Printing & Graphic Services Law Office Essentials • Corporate Supplies • Search & Registration Services E dyedurham.ca • Phone: 1-888-393-3874 • Fax: 1-800-263-2772 www.lawtimesnews.com W e ' r e a D y C S a 8 I n E 9 H a p N d & 9 i R m a 1 n C D o a A n Y M

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