Law Times

LAW TIMES / MAY 12/19, 2008 CaseLawLaw FEDERAL COURT OF Intellectual Property APPEAL Industrial And PATENTS Respondent did not compare drug for purpose of showing bioequivalence Minister issued notice of compli- ance in favour of respondent al- lowing respondent to market drug. Application for judicial review was dismissed. Appeal was dismissed. Judge correctly concluded obliga- tions under s. 5(1) of Patented Medicines (Notice of Compliance) Regulations (Can.) arose only where generic manufacturer made comparison to patented drugs for demonstrating bioequivalence. There was evidence to rely on to conclude respondent did not compare product with appellant's for purpose of showing bioequiva- lence. Bayer Healthcare AG v. Sandoz Canada Inc. (Jan. 23, 2008, F.C.A., Decary, Nadon and Trudel JJ.A., File No. A-283-07) Order No. 008/037/065 (7 pp.). Trade Unions Applicant claimed union violated duty of fair representation by refus- ing to represent applicant in griev- ance. Board dismissed applicant's complaint finding applicant did not present sufficient facts to estab- lish violation of duty. Application for judicial review was dismissed. Applicant's allegations were not substantiated. Board did not fail DUTY OF FAIR REPRESENTATION Board did not fail to examine whether union violated duty of fair representation to examine whether union violated duty of fair representation. Board did not err in deciding not to hold oral hearing. Thien v. I.L.W.U., Local 514 (Jan. 23, 2008, F.C.A., Letourneau, Sexton and Pelletier JJ.A., File No. A-250-07) Order No. 008/043/009 (14 pp.). FEDERAL COURT Administrative Law Applicant fired respondent. Ad- judicator dismissed respondent's complaint. Application for judicial review was allowed and matter was referred back to adjudicator for re- consideration. Decision was upheld on appeal. Adjudicator declared himself biased. Adjudicator refused to take up matter again. Adjudica- tor claimed adjudicator's mind was made up and different adjudicator should determine matter. Applica- tion was dismissed. Natural justice required matter to be referred to another adjudicator. West Region Child and Family Servic- es Inc. v. North (Jan. 23, 2008, F.C., Harrington J., File No. T-610-07) Order No. 008/037/069 (8 pp.). BIAS Natural justice required matter be referred for reconsideration where adjudicator declared himself biased Courts DD LT RXQTHZF-03 Law ad 5/1/08 3:22 PM Page 1 Applicant brought motion in each of four proceedings for directions on procedure to be followed. Appli- cant was granted extension of time within which to amend notices of application and further extension CONDUCT OF PROCEEDINGS Appeal from decision on motion for procedural directions was dismissed PAGE 17 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: 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 time to file applicant's record. Time for taking subsequent steps in proceeding was extended. Pro- thonotary refused to provide direc- tions and refused to require persons who were not named as parties to appear before judge in manner re- quested. Appeals were dismissed. Motion for directions was discre- tionary. Refusal to provide direc- tions was not matter vital to issue in case. There was no proper basis for reconsideration of order. There was no evidence to show named in- dividuals conducted themselves in any way that would come within Rule 466 of Federal Court Rules (Can.). Johnson v. Canada (Attorney Gen- eral) (Jan. 29, 2008, F.C., Hughes J., File No. T-1265-07; T-1315-07; T-1317-07; T-1318-07) Order No. 008/043/026 (5 pp.). Employment LABOUR RELATIONS Adjudicator erred in interpretation of collective agreement Respondent was employed on Ca- nadian Forces vessel. Respondent complied with request to work outside normal daily hours of work provided for in collective agree- ment notwithstanding required 48-hour notice was not provided. Adjudicator ordered respondent was entitled to receive payment at time-and-a-half. Applicant chal- lenged adjudicator's monetary remedy. Application for judicial review was allowed. Employer was acting in good faith. Need for cor- rective action or deterrent was not adequately explained by adjudica- tor. Collective agreement had to be interpreted as whole and not in abstract. Adjudicator did not men- tion three other clauses in collective agreement. Interpretation of col- lective agreement that adjudicator could award monetary remedy was not reasonable. Adjudicator's mon- etary remedy was not contemplated in collective agreement. Canada (Attorney General) v. McK- indsey (Jan. 21, 2008, F.C., Lutfy C.J., File No. T-1585-06) Order No. 008/037/077 (18 pp.). Immigration EXCLUSION AND EXPULSION Immigration Appeal Division erred by failing to consider all circumstances of case Applicant was ordered removed because applicant was convicted of trafficking in narcotic. Immi- gration Appeal Division stayed re- moval order for three years on con- ditions. Minister argued applicant was in breach of conditions. Im- migration Appeal Division refused Minister's request for oral review of Appeal Division found applicant breached conditions and cancelled stay. Immigration Appeal Division allowed applicant's appeal and or- dered removal order to be set aside. Application for judicial review was allowed. Immigration Appeal Divi- sion erred by failing to consider all of circumstances of case when it ex- ercised discretion to allow appeal. It was open to board to consider all circumstances of case includ- ing nature and severity of breach of conditions and to determine how it should exercise discretion. Canada (Minister of Citizenship and Immigration) v. Stephenson (Jan. 23, 2008, F.C., Dawson J., File No. IMM-6297-06) Order No. 008/037/071 (24 pp.). applicant's stay. Immigration Applicant was granted refugee sta- tus. Applicant had 26 convictions since then. Applicant was found inadmissible and was ordered de- INADMISSIBLE AND REMOVABLE CLASSES Deportation of applicant with 26 convictions was upheld ported. Appeal was dismissed. Ap- plication for judicial review was dismissed. Member did not ignore psychologist report or girlfriend's testimony, but gave little weight to them. Depression and anxiety were inevitable aspects of deportation. Reference to withdrawn charges did not entitle applicant to new hearing, given 26 convictions and Member's analysis limited to fraud related charges. Kravchov v. Canada (Minister of Citizenship and Immigration) (Jan. 25, 2008, F.C., Harrington J., File No. IMM-2287-07) Order No. 008/043/038 (11 pp.). Applicant was denied refugee sta- tus. Board found applicant had internal flight alternative. Board member made errors in recital of facts in oral decision. Errors were brought to member's attention as member spoke. Member cor- rected errors when reasons were reduced to writing. Application for judicial review was dismissed. Oral and written reasons substantially confirmed each other. Decision in both versions was based on inter- nal flight alternative. There was no fundamental discrepancy. Decision was not unreasonable. Mirashi v. Canada (Minister of Citizenship and Immigration) (Jan. 25, 2008, F.C., Harrington J., File No. IMM-3144-07) Order No. 008/043/037 (4 pp.). REFUGEE STATUS Oral and written reasons for denial of refugee status substantially confirmed each other Applicant was denied refugee status. Board found applicant's story was not credible, applicant had internal flight alternative and state protec- tion was available. Application for judicial review was dismissed. Ex- istence of state protection and in- Denial of refugee status upheld on review Canada's Largest Supplier of Indexes Dye & Durham Law Office Essentials A selection of products geared towards today's legal professional • Available in complete sets or packages of individual numbers • Buy the numbers or letters you require, no waste helps to save our trees • Sets from 1-2000, letters A-Z Buff or White with up to 30% post consumer waste yourONE source supplier for Office & Furniture Products • Corporate Promotional Products C U PREFERRED SUPPLIER OFFICE & FURNITURE PRODUCTS E Printing & Graphic Services • Law Office Essentials Corporate Supplies • Search & Registration Services dyedurhambasics.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 C n D o a A n Y M

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