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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Aboriginal Peoples NATURAL RESOURCES Consultation before imposition of quota discharged Applications judge correctly dis- missed application for judicial re- view from Minister's decision im- posing condition in 2004-2005 fishing licence issued to coun- cil limiting number of lobsters caught in two designated fishing areas by council's members. Con- stitutional duty to consult was not triggered on facts of this case. Consultation which occurred be- tween Minister and council be- fore Minister imposed quota was sufficient to discharge Minister's common law duty of fairness. Native Council of Nova Scotia v. Canada (Attorney General) (Mar. 31, 2008, F.C.A., Letourneau, Evans and Ryer JJ.A., File No. A-87-07) Appeal from 155 A.C.W.S. (3d) 244; [2007] 2 C.N.L.R. 233; 306 F.T.R. 294 dis- missed. Order No. 008/105/122 (5 pp.). Minister's duty of fairness SELF-GOVERNMENT Band failed to establish potential existence of Acadia Band v. M.N.R. (Apr. 2, 2008, F.C.A., Letourneau, Evans and Ryer JJ.A., File No. A-180-07) Appeal from 156 A.C.W.S. (3d) 3; [2007] C.T.C. 191; [2007] 3 C.N.L.R. 1 dismissed. Order No. 008/105/126 (8 pp.). Employment PUBLIC SERVICE Grievance about requirement to attend medical assessment was properly allowed Adjudicator found that actions of employer in requiring grievor to attend medical assessment by physician other than his own personal physician and to further instruct him to refrain from pre- senting himself to work until he complied with request were clear- ly disciplinary in nature and that such discipline was unwarranted since grievor was not provided with reasonable justification for such request. Adjudicator's allow- ing of grievance was reasonable. Canada (Attorney General) v. Grover (Mar. 12, 2008, F.C.A., Richard C.J., Sexton and Ryer JJ.A., File No. A-84-07) Appeal from 155 A.C.W.S. (3d) 98; 159 L.A.C. 365 dismissed. Order No. 008/098/019 (5 pp.). Intellectual Property Industrial And Application judge did not err in dismissing application for judicial review of Minister of National Revenue's decision declining to meet with Chief of appellant First Nation Band with respect to GST/HST assessment made against band. There was no evi- dence Acadia Commodity Tax was modern expression of Com- munal Sharing Tradition. Appel- lant failed to establish potential existence of credible Aboriginal rights protected by s. 35 of Cana- dian Charter of Rights and Free- doms. Validity of assessment re- mained to be dealt with by Tax Court of Canada. protected Aboriginal rights TRADE-MARKS Trade-marks CANADADRUGS. COM and CANADA DRUGS should not have been expunged JUNE 9, 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. v. Thorkelson (Mar. 13, 2008, F.C.A., Letourneau, Nadon and Sharlow JJ.A., File No. A-251-07) Appeal from 157 A.C.W.S. (3d) 164; 60 C.P.R. (4th) 35 al- lowed. Order No. 008/094/060 (14 pp.). FEDERAL COURT Immigration INADMISSIBLE AND REMOVABLE CLASSES Term "rejected" in s. 159.5(1)(c) (iii) of Immigration and Refugee Applications judge erred in ex- punging from Register trade- marks CANADADRUGS.COM and CANADA DRUGS. Record on appeal contained no evidence that was capable of establish- ing that, as of May 20, 2003, trade-marks in issue were clearly descriptive or deceptively mis- descriptive of character or qual- ity of services provided by online pharmacy business controlled by appellant. To extent that applica- tions judge relied on any of this evidence, such reliance was mis- placed. Candrug Health Solutions Inc. Refugee claim of applicant's sister was rejected. Applicant sought ex- emption under Safe Third Coun- try Agreement on basis of having family member in Canada. Offi- cer determined applicant did not qualify for exemption. Officer determined sister did not qualify as anchor relative. Sister appealed. Application for judicial review was dismissed. Section 159.5(1)(c) (iii) of Immigration and Refugee Protection Regulations (Can.), did not contemplate finality of all appeal processes. Term "rejected" did not include "finally rejected". Sister ceased to be anchor relative once sister's claim was rejected. Questions were certified. Baron v. Canada (Minister of Citi- zenship and Immigration) (Feb. 25, 2008, F.C., Phelan J., File No. IMM-4534-06) Order No. 008/063/078 (10 pp.). Protection Regulations (Can.) did not include "finally rejected" Injunctions INTERLOCUTORY RELIEF Applicants denied interlocutory injunction prohibiting transfer of detainees captured by Canadian Forces to Afghan authorities tial risk of torture. Applicants sought interlocutory injunction prohibiting respondents from transferring detainees captured by Canadian Forces to Afghan au- thorities pending final disposition of application for judicial review. Transfers ceased temporarily. Ap- plication was dismissed. Dispute between parties did not disappear. Applicants did not show irrepara- ble harm. There was uncertainty as to whether transfers would resume. If transfers resumed in future it was unknown what safe- guards would be put in place to protect detainees while in hands of Afghan authorities. Amnesty International Canada v. Canadian Forces (Defence Staff, Chief) (Feb. 7, 2008, F.C., Mac- tavish J., File No. T-324-07) Or- der No. 008/063/143 (36 pp.). CIVIL CASES Administrative Law ONTARIO Applicant claimed formal ar- rangements entered between Canada and Afghanistan did not provide adequate safeguards to ensure individuals transferred to custody of afghan authorities were not exposed to substan- Tribunal revoked applicant's tow- truck operator licence. Applicant's agent failed to appear at hearing. Applicant's request for adjourn- ment was refused. Tribunal de- termined it would continue to limited extent that two witnesses who could not attend on second scheduled date. Two police of- ficers were called and gave evi- dence. Applicant cross-examined officers. Hearing was then ad- journed. When hearing resumed agent proceeded without further examination of officers. Applica- tion for judicial review was dis- missed. Clear rejection by agent of opportunity to cross-examine and failure to object to procedure overcame any prejudice appli- cants might have suffered from denial of adjournment. Tribunal treated applicant fairly. Ciulla v. Toronto (City) (Feb. 25, 2008, Ont. Div. Ct., Jennings, NATURAL JUSTICE Any prejudice suffered from denial of adjournment was overcome Swinton JJ. and dissenting - Mol- loy J., File No. 557/07) Order No. 008/058/212 (9 pp.). Appeal LEAVE TO APPEAL Motion for leave to be filed in region where appeal to be heard Defendants' motion to strike statement of claim was dismissed. Action was transferred to Toronto and was ordered consolidated with Toronto action. Defendants brought motion in Toronto for leave to appeal interlocutory or- der. Motion for leave to appeal was to be brought in Central West Region. Transfer of action to To- ronto did not result in appeal be- ing heard in Toronto. Motion for leave to appeal was to be filed and heard in region where appeal was to be heard. Kambulow v. Toronto Airport Christian Fellowship (Mar. 7, 2008, Ont. Div. Ct., Ferrier J., File No. 75/08) Order No. 008/071/041 (5 pp.). Town refused respondent's ap- plication to sever property. Board dismissed respondent's applica- tion. Review panel ordered re- hearing of issues related to water quality in lake. Application for leave to appeal was allowed on three questions. Issue was legal issue of sufficient importance. Applicable test for dealing with development issues and impact of phosphorous on water quality in areas were matters of considerable public importance. There was good reason to doubt correctness of review panel's decision with re- spect to precautionary principle. Lake Waseosa Ratepayers' Assn. v. Pieper (Feb. 25, 2008, Ont. Div. Ct., Molloy J., File No. 430/07) Order No. 008/063/165 (5 pp.). considerable public importance Matters in issue were of PROCEDURE Real concern existed that judge failed to deal with motion for leave on merits Motion for leave to appeal was When the entire firm has the same goal, success comes naturally. Une équipe avec un objectif commun : le succès dans la poche! SMSS.COM CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN'S Untitled-10 1 www.lawtimesnews.com 11/6/07 3:56:47 PM

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