Law Times

PAGE 14 CaseLawLaw FEDERAL COURT Civil Procedure COSTS Assessment officer could not act as litigant's advocate Ayangma v. Canada (Treasury Branch) (Jan. 23, 2008, F.C., Assessment Officer Stinson, File No. T-917-06) Order No. 008/043/016 (3 pp.). Elections FINANCES Refund of convention entry fee was not prohibited transfer of funds Applicant applied for judicial re- view of Chief Electoral Officer's decision finding that refund of convention "entry fee" to leader- ship contestants by political party prohibited by s. 404.3 of Canada Elections Act. Contestants, includ- ing applicant, each paid entry fee to attend leadership convention. Party proposed to refund entry fees when more delegates regis- tered than anticipated and con- vention turned a significant profit. Application for judicial review al- Determination of costs following dismissal of application for judi- cial review of decision of adjudi- cator pursuant to Public Service Staff Relations Act (Can.), ad- dressing fraudulent travel claims and unauthorized absences from work. Applicant did not file any materials in response to respon- dent's materials addressing costs of judicial review and certain mo- tions. Respondent's bill of costs assessed and allowed as presented at $7,960. Federal Courts Rules (Can.), do not contemplate a litigant benefiting by having as- sessment officer step away from neutral position to act as litigant's advocate in challenging given items in bill of costs. However assessment officer cannot certify unlawful items outside author- ity of judgment and tariff. Total amount claimed in bill of costs reasonable within limits of cost awards. lowed. Proposed payment did not constitute prohibited transfer of funds. Rather, it was "retransfer" or return of money that belonged to contestant. If entry fee had not been imposed, applicant could have used money as he saw fit, subject to confines of the Canada Elections Act. Rae v. Canada (Chief Electoral Of- ficer) (Feb. 25, 2008, F.C., Har- rington J., File No. T-755-07) Or- der No. 008/063/124 (15 pp.). Intellectual Property Industrial And Appeal by defendants from de- cision of prothonotary granting plaintiffs leave to amend state- ments of claim in patent actions relating to three ply bolted tem- porary road mats used to make temporary roads in places where construction of conventional road was impractical. Amended statement of claim expanded al- legations of infringement. Plain- tiffs pleaded that full extent of infringement was not unknown. Plaintiffs alleged that infringing road mats were being manufac- tured and sold by defendants but they did not know which ap- paratus and methods were used in their manufacture. For this reason they alleged in amended pleading that all apparatuses and methods were used. Appeals al- lowed. Amendments could not be characterized as incomplete or missing some elements. They were entirely bald and plaintiff did not have ability to correct them with particulars before dis- covery because it lacked neces- sary knowledge. Amended claims were utterly devoid of material facts linking any of claims to any infringement activities and they did not give defendants any idea of case they must meet. Harrison v. Sterling Lumber Co. (Feb. 20, 2008, F.C., Simpson J., File No. T-2058-05; T-2099-05) Order No. 008/063/126 (17 pp.). PATENTS Amended claims were devoid of material facts linking claims to infringement activities MAY 5, 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: 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. CIVIL CASES PLEADINGS No basis to strike pleadings r ONTARIO egarding ethnic background of parties Motion by defendants to strike out portions of statement of clam that inter alia contained irrelevant and prejudicial references to places of party's origin, and pleaded facts related to non-party that related to issues involving solicitor-and-client relationships. Statement of claim contained information that certain defendants were Iranian by back- ground and made references to K., a solicitor who was not party but who was sourced from defendant S.. Pleading of ethnic background of parties was not prejudicial and was not immaterial as there were issues in lawsuit relating to plain- tiff's ability to move funds from Iran to Canada and defendant's understanding of commercial and political circumstances in so doing. Accordingly there was no basis to strike those paragraphs. Paragraphs referencing solicitor K. were irrel- evant as he was non-party and it was not proper to make allegations against K. in circumstances. Para- graphs referring to K. were struck with leave to amend. Sheppard International Trad- ing v. Baghai (Feb. 28, 2008, Ont.S.C.J., Master McAfee, File No. 06-CV-320067PD 2) Order No. 008/063/214 (18 pp.). Conflict Of Laws Appeal of decision of motion judge granting respondent's mo- tion to stay proceedings in On- tario. Motions judge determined that appellant had no presence in Ontario, and that there was no real and substantial connection be- tween parties and Ontario which allowed Ontario to assume juris- diction. Appellant contended that motion judge decided issue having JURISDICTION No error in failure of motion judge to address forum non conveniens after application of real and substantial connection test considered only fact that one of appellant's mineral claims was on property that traversed Quebec/ Ontario border and that she ig- nored fact that respondent's shares publicly traded on TSX and that respondent represented on its web- site that it had operated profitable private company in Ontario and Quebec. Appellant contended that motions judge also erred in failing to consider principle of forum non conveniens. Appeal dismissed. Is- sues of "presence in Ontario" and "real and substantial connection test" were decided based on find- ings of fact by motions by judge. Motions judge not erring in de- termining that real and substantial connection not established. Mo- tions judge not erring in failing to address forum non conveniens. Once motion judge concluded that Ontario had no jurisdiction to hear action under real and sub- stantial connection test it was un- necessary for her to decide issue of forum non conveniens. 582556 Alberta Inc. v. Canadian Royalties Inc. (Jan. 28, 2008, Ont. C.A., LaForme, Rouleau and Watt JJ.A., File No. C47757) Order No. 008/043/100 (4 pp.). Family Law SUPPORT Absence of evidence of diligent job search supported finding that payor intentionally unemployed applicant obtaining full-time em- ployment and September 1, 2008. Award based on imputed income pursuant to s. 19 of Guidelines and previous settlement between par- ties of $40,000 per year. Absence of evidence of diligent job search by applicant can lead to no other conclusion than that applicant was intentionally unemployed. Filippetto v. Timpano (Feb. 1, 2008, Ont.S.C.J., Kane J., File No. D-15,623-02) Order No. 008/043/135 (4 pp.). Motion for order decreasing child support from $783 to $335 retro- active to June 1, 2007. Applicant and respondent had in 2004 en- tered into minutes of settlement in divorce proceedings for child support pursuant to Federal Child Support Guidelines (Can.), based on imputed annual income of $40,000. Applicant was unem- ployed at time. Applicant obtained employment then lost job at end of May 2007. Applicant paid little if any support between June 2007 and October 2007. No evidence of diligent job search by applicant. Applicant did some training as real estate broker but discontin- ued course. Child support varied to $570 per month commencing June 1, 2007 until earlier date of Motion by wife within divorce proceeding for interim spousal support. Parties, aged 27 and 29, separated after seven years of mar- riage. There were three children of marriage, aged seven, four and three, who lived with mother, with substantial access by father. Applicant who had worked only occasionally since separation and had been full-time student for two years, had qualified as dental as- sistant. Applicant had applied to university to commence studies in September 2008. Husband's 2007 income was $117,000 and was projected to be $95,000 in 2008. Husband's CHEQUEmate calcu- lations attributed $20,000 annual income to wife. Interim spousal support of $1,400 ordered. Short term of marriage and relatively young age of parties and qualifica- tions wife had obtained indicated indefinite spousal support would not be ordered at trial however re- spondent did have financial capac- ity. Amount payable by husband was at mid-point on CHEQUE- mate without any attribution of income to wife based on annual income of $100,000. Tremblay v. Tremblay (Feb. 5, 2008, Ont.S.C.J., Kane J., File No. D-17,455-06) Order No. 008/043/132 (4 pp.). Interim spousal support ordered for wife after seven-year marriage ended Motor Vehicles REGISTRATION Registrar not authorized to invalidate plates issued to railer rental company 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

• Cover