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Page 14 July 25, 2016 • law Times www.lawtimesnews.com CASELAW reasonable. Adjudicator applied proper standard of proof to deci- sion of Deputy Head. Forner v. Canada (Attorney General) (Apr. 29, 2016, F.C.A., Marc Noël C.J., Eleanor R. Daw - son J.A., and A.F. Scott J.A., A-529-14) 266 A.C.W.S. (3d) 109. Applicant's attempt to establish bias was pure speculation Applicant held immigration of- ficer position but held on an in- terim basis, a PRRA agent status. In December 2010, Agency initi- ated process of internal appoint- ment for post of Hearing Officer. Applicant was not selected as he failed to get passing grade in three areas once his references were checked although his interview scores were high References G and K gave contradictory reports and tribunal brought in third reference C who confirmed un - satisfactory rating. Committee refused to accept portfolio which contained assessments of perfor- mance, letters of appreciation and certificates of recognition. Ap- plicant unsuccessfully brought application for judicial review, al- leging failure to admit allegations of bias on part of third reference in context of alleged reprisals. Applicant appealed. Appeal dis - missed. There was no failure to take into account relevant and material evidence. Applicant's at- tempt to establish bias on basis of request for access to information was pure speculation. It was up to committee to weigh references provided by each person based on integrity of respective claims and fact that committee gave more weight to other versions was not abuse of power. Pierre c. Canada (Agence des services frontaliers) (Apr. 21, 2016, F.C.A., Johanne Gauthier J.A., A.F. Scott J.A., and Yves de Montigny J.A., A-232-15) Deci - sion at 259 A.C.W.S. (3d) 83 was affirmed. 266 A.C.W.S. (3d) 107. Employment Insurance APPEAL Crown's motion for preliminary dismissal of application for judicial review was granted General Division of Social Se- curity Tribunal dismissed em- ployee's application challenging Canada Employment Insurance Commission's finding qualifying employee's severance pay as "earn - ings" pursuant to s. 35(2) of Em- ployment Insurance Regulations (Can.). Appeal Division of Social Security Tribunal dismissed em- ployee's application for leave to ap- peal General Division's decision, pursuant to s. 58(1) of Department of Employment and Social De- velopment Act (Can.). Employee brought application for judicial review of Appeal Division's deci- sion. Crown brought motion for preliminary dismissal of applica- tion for judicial review. Motion granted; application dismissed. It was plain and obvious that Federal Court of Appeal had no jurisdiction to entertain applica - tion for judicial review of decision refusing leave, as it was expressly excluded by s. 28(1)(g) of Federal Courts Act (Can.). Federal Court of Appeal was statutory court. No federal statute conferred jurisdic- tion on Federal Court of Appeal to be seized of this matter. Hood v. Canada (Attorney General) (May. 5, 2016, F.C.A., Johanne Trudel J.A., Wyman W. Webb J.A., and A.F. Scott J.A., A-372-15) 266 A.C.W.S. (3d) 112. Immigration INADMISSIBLE AND REMOVABLE CLASSES Court had jurisdiction to compel Minister to render decision Immigration and Refugee Board found respondent to be inadmis- sible. Respondent's application for judicial review was stayed until 15 days after respondent received final decision by Minister about whether to grant ministerial re - lief from finding of inadmissibil- ity. Appellant asserted there was jurisdictional error because court exceeded its jurisdiction by taking away from Minister his discre - tion to await outcome of judicial review of finding of inadmissibil- ity before making own decision on ministerial relief application. Appellant appealed order grant- ing stay. Appeal dismissed. Noth- ing in s. 34 of Immigration and Refugee Protection Act (Can.) dictated whether ministerial relief decision should be made before determination of inadmissibility. Court had jurisdiction to compel minister to render decision where there was unreasonable delay. It followed that minister had no discretion to determine order in which decisions under s. 34 were made. Section 72(2)(d) of Act did not limit jurisdiction of court to stay application initiated under Act when it was in interest of jus - tice that proceeding be stayed. Canada (Minister of Citi- zenship and Immigration) v. Goodman (Apr. 25, 2016, F.C.A., Eleanor R. Dawson J.A., Stratas J.A., and Near J.A., A-370-15) 266 A.C.W.S. (3d) 187. Industrial and Intellectual Property PATENTS No error of law in motion judge's analysis and conclusions Applicant held patent relating to drug. Generic drug company filed Notice of Allegation, alleg- ing that all seven claims of patent were invalid. In applicant's pro- hibition application, it elected to only assert validity of two claims. Prohibition application was dis- missed with both claims found invalid on ground of obvious- ness. Respondent generic manu- facturer served Notice of Allega- tion that challenged all claims of patent on grounds of obvious- ness. Applicant brought prohibi- tion application against respon- dent, with pleadings proposing to defend non-obviousness of claims that were not specifically found invalid in prior proceed - ing. Respondent's motion to dismiss prohibition application was abuse of process was grant- ed. Applicant appealed. Appeal dismissed. There was no error of law in motion judge's analysis and conclusions that would war- rant appellate intervention. Gilead Sciences, Inc. v. Apo- tex Inc. (May. 4, 2016, F.C.A., Pelletier J.A., Richard Boivin J.A., and Rennie J.A., A-69-16) Deci- sion at 257 A.C.W.S. (3d) 437 was affirmed. 266 A.C.W.S. (3d) 199. Natural Resources WATER AND WATERCOURSES Minister's assessment of proposed works on navigation and riparian rights was reasonable There was long history of disputes between property owners on river and marina. Marina pub- lished notice informing public that it applied to for approval of plans and location of three f loat- ing docks in river and anchorage areas. Three ministerial approv- als were granted under Navigable Waters Protection Act (Can.), which were valid for 30-year pe- riod. Applicant's application for judicial review to cancel minis- terial approvals on basis of lack of jurisdiction, for committing reviewable error by not consider- ing ownership of river bed and by erring in assessment of riparian rights was dismissed. Minister's assessment of proposed works on navigation and riparian rights was reasonable. It was reason - able for Minister to conclude that platforms "B" and "D" were not designed or used for navigation since intention of marina was obvious, which was to operate to dock boats. It was reasonable for Minister to conclude that firmly anchored docks used to moor boats were works within meaning of Act. Under Act, role of Minis - ter was to ensure compliance with Act and its implementing provi- sions, not to ensure respect for property rights claimed by appli- cant. It was reasonable for Minis- ter to not consider property rights claimed on river bed. Applicant appealed. Appeal dismissed. Evi- dence did not support applicant's argument that Minister did not take into account riparian rights. Trial judge did not err in finding that assessment made by Minis - ter of impact of proposed works on navigation and riparian rights was reasonable. It was not for court to substitute its own assess - ment of evidence for that of Min- ister in absence of manifest error in exercise of discretion. Minister was not biased and did not have closed mind. Thibeault c. Canada (Min - istre des Transports, de l'Infra- structure et des Collectivités) (Apr. 5, 2016, F.C.A., Johanne Gauthier J.A., Richard Boivin J.A., and Yves de Montigny J.A., A-131-15) Decision at 254 A.C.W.S. (3d) 210 was affirmed. 266 A.C.W.S. (3d) 8. Taxation INCOME TAX Matter remitted back to Minister for reassessment Taxpayer company issued con- vertible debentures to holders, for US$1000 each. In 2005 and 2006 taxation years, 142,639 deben- tures were converted and 1,111 were redeemed for taxpayer's common shares. Minister as- sessed taxpayer under Income Tax Act (Can.) on basis that it re- alized deemed capital exchange gains under s. 39(2) of Act be- cause value of principal amount of US$1,000 had decreased in Canadian dollars by time of conversions and redemption. Taxpayer's appeal was allowed in part, on basis that foreign ex - change gains were only realized by taxpayer upon redemptions and not on conversions. Minister appealed. Appeal allowed. Tax Court judge erred in character - izing indenture on ex post facto basis, finding that it constituted subscription for shares in respect of those holders who exercised conversion rights but not for those holders whose debentures were redeemed. It was necessary to interpret indenture on appeal, determining rights and obliga - tions of holders and taxpayers at time they entered into indenture when it was unknown whether debentures would be redeemed, converted, or repaid. Conversion was repayment of indebtedness evidenced by convertible deben - ture. Issue was whether taxpayer made gain for purposes of s. 39(2) of Act when it repaid, by issuance of common shares, its indebted - ness evidenced by convertible debentures that were issued for US$1,000 or $1,588. Value in Ca- nadian currency of consideration given by taxpayer to satisfy its repayment obligations had to be determined but, contrary to Min - ister's assertion, repayment was not US$1,000 in quantum as that was not what holders received upon conversions. Holders were entitled to 71.429 common shares per debenture. As taxpayer did not issue fractional shares, inden - ture provided formula based on trading price of common shares on New York stock exchange for valuing fractional shares. It could be readily inferred that parties in - tended formula to apply equally to determination of quantum of balance of repayment amount. Repayment amount was US$ amount determined by formula on each conversion date and con - verted into Canadian currency. Matter would be remitted back to Minister for reassessment in ac- cordance with these reasons. R. v. Agnico-Eagle Mines Ltd. (Apr. 26, 2016, F.C.A., Johanne Trudel J.A., David Stra- tas J.A., and C. Michael Ryer J.A., A-532-14) Decision at 245 A.C.W.S. (3d) 969 was reversed. 266 A.C.W.S. (3d) 260. Ontario Civil Cases Appeal PROCEDURE Justice of case did not warrant extension of time to file notice of appeal Applicant started proceedings in respect of father's estate chal- lenging respondent's right to cer- tain accounts that were in joint names of respondent and father prior to father's death. Parties brought summary judgment mo- tions. Applicant's motion was dis- missed and respondent's motion was granted. Result was that joint accounts were declared to have passed by right of survivorship to respondent and did not form part of father's estate. Applicant brought motion for extension of time to file appeal from order. Ap - plicant was lawyer and stated he did not do civil appeals, but less than two years ago he was counsel on summary judgment motion and on appeal. Motion dismissed. There was no doubt applicant formed bona fide intention to ap - peal within appeal period. Length of delay in filing notice of appeal was short being less than three weeks. Doubt was cast on expla - nation for delay suggesting ap- plicant was less than forthcoming in his explanation for delay. There was no prejudice caused, perpe- trated or exacerbated by delay. Applicant failed to show any mer- it in proposed appeal. Grounds of proposed notice of appeal going to merits were bald generalized assertions. Justice of case did not warrant extension of time to file notice of appeal. Laski v. Laski Estate (May. 4, 2016, Ont. C.A., E.E. Gillese J.A., In Chambers, CA M46343) 266 A.C.W.S. (3d) 15. Bankruptcy and Insolvency ADMINISTRATION OF ESTATES Trial judge failed to give effect to all words of release Company granted two charges over property to creditor, to se- cure money it borrowed and to secure guarantees it provided in support of two promissory notes from K, principal of company, and G. Creditor brought action against G and K on promissory notes and separate action against company, and it obtained default judgment against company and K. G brought action against K and his companies, which was settled, and parties entered into mutual release. G incorporated numbered company and creditor assigned charges on company's property and default judgment to numbered company for valu - able consideration. Subsequent to assignment, company was ad- judged bankrupt. Property was sold. Numbered company filed proof of claim in bankruptcy for $765,792.38, ref lecting charges. Trial judge allowed numbered company's claims as assignee, rejecting argument that release applied to bar numbered com - pany's claims as assignee. Trustee in bankruptcy appealed. Appeal allowed. When considered as whole, release applied to compa - nies controlled by G, including numbered company, and to sub- ject matter of numbered com- pany's claims. Trial judge failed to give effect to all words of release. Numbered company was com- pany under G's control and was captured by definition of parties included in release. Result made commercial and practical sense,

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