Law Times

Law Times • June 4, 2012 warrant, challenged primar- ily administrative investigatory steps, had no hope of success and were not in interests of justice. Appeal was dismissed. Proposed amendments, they may peripherally touch on warrant application issue, were superfluous. Appellant' to extent that lenge to agency's policy of obtain- s chal- ing warrants under Code, rather than under Acts, was on table by virtue of original notice of appli- cation. Neither prothonotary nor judge erred in denying appel- lant leave to amend his notice of application. Lawson v. M.N.R. (Mar. 7, 2012, F.C.A., Blais C.J., Evans Layden-Stevenson JJ.A., File No. A-192-11) 212 A.C.W.S. (3d) 872 (6 pp.). and FEDERAL COURT Industrial and Intellectual Property Applicant's innovation was to take PATENTS Minister applicant`s drug on Register of Innovative Drugs on basis medicinal ingredient was not innovative. Applicant argued its drug should be considered innovative despite thalidomide having been previously approved by Health Canada in 1960 and 1961. Applicant argued it became null and void when approval was withdrawn for safety reasons in 1962. Application for judicial review was allowed. Minister failed to apply purposive inter- pretation of regulation which was to encourage and reward innova- tion by protecting data innovator had to generate to obtain approv- al for drug. Applicant' something banned as dangerous and show it to be useful refused to register tion was to take something that was banned as dangerous and that was found to not to be safe and to show it to be useful life- saving drug. Applicant could not and did not rely on old data. Celgene Inc. v. Canada (Minister of Health) (Feb. 6, 2012, F.C., de Montigny J., File No. T-148-11) 212 A.C.W.S. (3d) 814 (36 pp.). s innova- Prisons Inmate contested letter of Senior Deputy Commissioner, Correctional Service of Canada ("CSC") advising that classifica- tion to other than maximum security for convicted mur- derer Inmate failed to exhaust available internal remedies INMATES' RIGHTS of Institution. Inmate was sen- tenced to life imprisonment without eligibility for parole for ten years after being convicted of first degree murder. Initially he served that sentence at youth maximum security facility. On his 21st birthday he was to be taken to adult Institution' remained with Warden Unit for classification and place- ment before entering adult fed- eral penitentiary system. When offenders convicted of murder s Assessment arrive in federal custody, CSC's policy is to place them in maxi- mum security facility for at least first two years of federal incarcer- ation. Inmate' for exceptional override of this policy at discretion of Assistant Commissioner. Intake parole recommended that he be placed in maximum security facility. No recommendation was made on granting exceptional override. Penitentiary Placement Board reviewed parole officer' s solicitor applied ment and also recommended maximum security placement. Application dismissed. Internal administrative process facilitates identification of exceptional cases warranting consideration by Assistant Commissioner and did not represent improper sub delegation of authority, but was further elaboration of pro- cess for ensuring appropriate inmate classification. Consistent with Directive, Assistant Commissioner remained pri- mary and final decision-maker in process. While delegated leg- islative and judicial powers must be exercised by person to whom they were granted, administra- tive powers may be freely sub- delegated to others. Inmate failed to exhaust available internal rem- edies by pursuing matter through grievance process. Bagshaw v. Canada (Attorney General) (Mar. 6, 2012, F.C., Near J., File No. T-356-11) 99 W.C.B. (2d) 864 (19 pp.). s assess- ONTARIO CIVIL CASES Defendant moved for stay on basis that Ontario court should not assume jurisdiction. Plaintiff sought damages for personal injury she suffered when she allegedly fell in defendant' larger number of witnesses located in Ontario Plaintiff would be calling Conflict Of Laws JURISDICTION after tripping over bunched up section of rug located at entrance. Store was located in New York. No one witnessed plaintiff ' s store Motion dismissed. All damages and treatment were incurred in Ontario and there was significant connection between plaintiff ' s fall. claim and Ontario. There was connection between defendant and Ontario. Defendant was part of international organization that had stores in Ontario. Defendant advertised on Internet. s not unfair to require defendant to defend action in Ontario. There was no evidence or law that New York would be unwill- ing to enforce extra-provincial judgment. Plaintiffs established real and substantial connection between forum and claim and between forum and defendant such that Ontario court may assume jurisdiction based on real and substantial connection test. New York was not more appropriate forum to displace Ontario as plaintiff ' It was choice. Plaintiffs were in Ontario. Defendant conducted business CASELAW in Ontario and had substantial connections and presence in Ontario. Plaintiffs would be call- ing larger number of witnesses, including medical experts who were located in Ontario. No other proceeding was commenced. New York state law would apply but it was similar to Ontario law. Ontario was forum conveniens. Young v. Home Depot, U.S.A., Inc. (Mar. 27, 2012, Ont. S.C.J., Gunsolus J., File No. 119/11) 212 A.C.W.S. (3d) 734 (9 pp.). Bank applied for order lifting stay of proceedings and appoint- ing receiver. Initial order was made under CCAA in respect of debtors. Court approved sale process in respect of debtors. Approved DIP facility was tied to success of sale process. Monitor received three offers and worked with debtors to refine terms of two bids. One bidder withdrew. Bank then delivered notice that sales process default occurred under DIP facility and further funding was no longer available. Board of Directors resigned. Application granted. No one opposed motions. Based on evi- dence, there was no other alter- native than to appoint receiver. Sales process had fallen apart. Bank, DIP lender, declined to make further advances. Debtors had no access to further work- ing funds. Board of Directors resigned en masse. There was no prospect of viable proposal in CCAA proceedings. Employees were instructed not to report to work and debtors were not carry- ing on business. Appointment of receiver was needed to stabilize situation for benefit of all stake- holders of debtors. It was just and reasonable to appoint receiver in circumstances. NFC Acquisition GP Inc. (Re) (Feb. Appointment of receiver needed to stabilize situation Corporations RECEIVERS (Comm. List), Brown J., File No. CV-12-9554-00CL; CV-12- 9616-00CL) 212 A.C.W.S. (3d) 732 (5 pp.). 22, 2012, Ont. S.C.J. Debtor And Creditor FRAUDULENT Applicant and respondents were clients of lawyer. Respondents were Respondents did not know money received from lawyer obtained through fraud TRANSACTIONS trusts that lawyer was asked to look after. Lawyer used some of money for lawyer' beneficiaries of family poses and placed rest in specu- lative and poor investments. Lawyer advised respondents lawyer placed money in GIC. Lawyer s own pur- from applicant obtained s forum of ly. Lawyer gave respondents money lawyer received from applicant. Applicant sought return of $450,000 from respon- dents. Action was dismissed. Respondents did not know or should have known money respondents received was www.lawtimesnews.com fraudulent- $450,000 obtained by fraud. Reasonable person would not conclude some other party had been defrauded by someone who had been trusted adviser and friend or to so strongly sus- pect it that there was legal duty to inquire if it were so. There was no duty to inquire. There was no trust or constructive trust. No lia- bility could attach to respondents for anything learned at time sub- sequent to delivery of cheques. Sarhan v. Chojnacki (Feb. 1, 2012, Ont. S.C.J., Lederer J., File No. CV-09-388502) 212 A.C.W.S. (3d) 874 (14 pp.). lawyer through Family Law Society brought amended sta- tus review application seeking order granting custody of child to grandmother with access to parents to be in grandmother' Mother offered no explanation for dropping out of child' for over five months CHILD WELFARE s life discretion. Grandmother and father supported application. Mother brought motion for leave to extend time to file answer/ plan of care to amended status review application of society. Mother was four days over time- limit. Motion was dismissed. Mother did not present suf- ficient evidence to show child' s best interests justified granting extension order. Mother did not present realistic plan or estab- lish there was genuine issue for trial. Mother' s of merit and was not in best interests of child. There was no evidence mother made gains necessary to safely and respon- sibly parent child in near future. Mother showed no insight into child' s plan was devoid explanation for dropping out of child' Mother's failure to inquire about child raised concerns degree of mother's connection s needs. Mother offered no s life for over five months. about to child. Risks of harm of child being returned to mother had not diminished. Mother was to have supervised access for fore- seeable future. Jewish Family and Child Service of Greater Toronto v. P. (M.J.) (Jan. 31, 2012, Ont. C.J., Sherr J., File No. C48668/09) 212 A.C.W.S. (3d) 751 (14 pp.). ONTARIO CRIMINAL CASES Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Officer may have been Accused were charged with traf- ficking in cocaine and metham- phetamine and argued that their Charter ss. 8, 9 and 10 rights were breached and that evidence be excluded. Police officer observed two vehicles pull up beside each other in mall parking lot after midnight with windows open. Officer was suspicious and went over-enthusiastic but did not act in bad faith PAGE 15 over to question occupants. Officer called for backup after occupants appeared jumpy. One officer observed plastic bag- gie partially exposed under one person and further investiga- tion revealed it to be cocaine. Subsequent searches of vehicle and cellphones revealed more drugs and message regarding meeting place. Officer testi- fied that he had two other drug transactions earlier that same day which prompted his suspi- cions. Officer also did not give accused s. 10 Charter rights and accused made further state- ments. Charter breaches found, evidence admitted. Court con- cluded that accused were arbi- trarily detained as officer only had suspicion which was not reasonable to detain accused. Subsequent searches of vehicle were pursuant to initial Charter breach. Evidence was not exclud- ed however as officer may have been over-enthusiastic but he did not act in bad faith. Accused did not satisfy onus that admin- istration of justice would not be placed in disrepute as society had strong interest of adjudicating this case on its merits. R. v. Munro (Jan. 4, 2012, Ont. S.C.J., Gray J., File No. CR-11- 024) 99 W.C.B. (2d) 847 (20 pp.). Sentence GENERAL Sentencing of accused after he pleaded guilty to failing to pro- vide necessities of life to his seven week old son who required med- ical aid. Accused and his wife were deaf. They brought child to hospital and he was found to have suffered variety of serious injuries. Accused admitted that he inflicted injuries on child by his actions or by his negligence. He was 38 years old and he did not have criminal record. His presentence report was positive. Accused was high-functioning individual of previous good character who persevered to overcome his deafness, which was significant challenge in his life, and he accepted responsibil- ity for offence. He was sentenced to nine months' imprisonment, to be followed by three years of probation. He was not to be alone in presence of his child in absence of another adult. Request for conditional sen- tence was considered. Accused did not represent risk to com- munity and there was no risk that he would reoffend. Request was denied because conditional sentence could not be fashioned that would meet needs of gen- eral deterrence and denuncia- tion. Jail sentence was called for because child suffered multiple incidents of trauma that were allowed to go on without medi- cal attention being provided for significant number of days. R. v. Keddy (Feb. 7, 2012, Ont. C.J., Bellefontaine J., File No. 2811 998) 99 W.C.B. (2d) 880 (15 pp.). Jail sentence called for because child suffered multiple incidents of trauma LT

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