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Page 14 August 8, 2016 • LAw times www.lawtimesnews.com CASELAW s. 97(2) of code. Board's decision to grant extension of time was discretionary. Board made rea- sonable decision that applicant's mistaken belief that he had to bring internal appeal regarding his seniority before filing duty of fair representation complaint did not justify grant of extension of time. Board's comment that applicant failed to submit affi- davits from fellow employees to substantiate allegations that he was treated differently did not amount to requirement to sub- mit affidavits. Madrigga v. TC, Canada Rail Conference (May. 17, 2016, F.C.A., Eleanor R. Dawson J.A., C. Michael Ryer J.A., and Yves de Montigny J.A., A-299-15) 266 A.C.W.S. (3d) 472. Federal Court Elections ELIGIBILITY OF CANDIDATES Action challenging acceptance requirements in Canada Elections Act was struck out Plaintiffs were three individu- als residing in British Columbia. Plaintiffs intended to stand as candidates for election in federal election held in 2015. Plaintiff S presented himself for that pur- pose to returning officer for fed- eral electoral district of Victoria. S's nominating papers were re- fused because he did not have au- ditor as required to be appointed, nor did he have names, addresses and signatures of at least 100 persons entitled to vote in rid- ing, nor did he pay or offer to pay deposit of $1,000 or any other amount, all as required by Can- ada Elections Act (CEA). There was no submission in amended statement of claim that other two plaintiffs presented themselves to be accepted as candidates. Plaintiffs commenced action challenging CEA governing 2015 election and, in particular, requirements for acceptance as candidates. Defendants brought motions to dismiss plaintiffs ac- tion. Motions granted. Claims against Chief Electoral Offi- cer (CEO) of Canada could not stand as CEO could not make changes to CEA or stay results of election. Any claim requiring CEO to take such action should proceed by way of application under Federal Court Act (Can.) for mandamus. Plaintiffs had not specifically invoked Canadian Charter of Rights and Freedoms in their amended statement of claim although they referred to certain rights. Plaintiffs had not pleaded that limitations re- specting auditor, or payment of money or 100 signatures pre- sented unreasonable limitations nor was it self-evident that they did so. It had not been shown in claim that either returning officer or CEO engaged in any conduct that would constitute basis for claim of misfeasance of public office. Action was struck out in its entirety. Shebib v. Canada (May. 12, 2016, F.C., Roger T. Hughes J., T-1748-15) 266 A.C.W.S. (3d) 376. Industrial and Intellectual Property COPYRIGHT Application for infringement of copyright and moral rights was dismissed Copyright owners were three individuals who produced doc- umentary about Polish woman who hid Jews from Germans during World War II. One own- er was granddaughter of man who had been hidden by wom- an and who had made entries about his experience in diary. After seeing documentary, au- thor wrote novel conveying fic- tionalized account of woman's story using many facts obtained from documentary. Author self- published novel initially, and it became best-seller. Publisher acquired publish rights for novel. Documentary was never mentioned in book or publicity material. Owners brought appli- cation against author and pub- lisher for relief for infringement of copyright and moral rights. Application dismissed. Owners failed to establish any infringe- ment of copyright or moral rights. Woman's story was not in and of itself covered by own- ers' copyright in documentary. Factual details of woman's story were also not covered by own- ers' copyright in documentary. Owners' copyright only protect- ed owners' specific expression of woman's story through exercise of their skill and judgment. No one owned copyright in facts no matter what their relative size or significance. What was pro- tected was owners' particular means, method, and manner used to tell woman's story. Us- ing actual fact from documen- tary was not infringement no matter how large or small, or how significant or insignificant, such fact might be. There could be no copyright in facts or ideas, only in their expression through exercise of skill and judgment. Authors' novel did not amount to substantial taking of protect- ed material from documentary. Copyright protection for fic- tional characters did not extend to real people. Originality of documentary remained intact despite fact novel used its his- torical facts. Novel constituted new and original work of fic- tion emanating from historical facts. As for moral rights, there was negligible, if any, relevant evidence of how owners' hon- our and reputation had been af- fected by novel. Maltz v. Witterick (May. 10, 2016, F.C., Keith M. Boswell J., T-500-14) 266 A.C.W.S. (3d) 451. Taxation INCOME TAX Minister did not deprive company of any procedural rights Company requested that its 2012 corporate income tax re- turn be amended to include claim for Scientific Research and Experimental Development (SR&ED) expenditures. Com- pany submitted Form T661 in respect of SR&ED claim for its expenditures incurred to de- velop portable refuelling mech- anism for fracking equipment. Company claimed expenditures in amount of $375,000 in order to obtain deduction from its 2012 income under s. 37 of In- come Tax Act (Can.) (ITA). CRA found form T661 was not fully completed and denied com- pany's request for adjustment to its 2012 tax return. Company brought application pursuant to s. 18.1 of Federal Courts Act (Can.) for judicial review. Ap- plication dismissed. Although company submitted two pages of part 2 of Form T661, CRA found that form as submitted was not complete because it did not contain all prescribed information requested in lines 242 and 244. Fact of matter was that pages of form contain- ing lines 242 and 244 were not completed at all or even submit- ted by company, and there did not appear to be any informa- tion in line 240 that specifically supplied requested and missing information. It was reasonable for CRA to find that such in- formation was absent and claim was not complete. Nothing in ITA required Minister to check taxpayer's filing for other taxa- tion years before determining whether prescribed informa- tion for different taxation year was missing in Form T661. It was significant that form spe- cifically required information in relation to only one tax year for which claim was made. Therefore, CRA's determination that form as submitted could not be accepted because not all prescribed information was provided was reasonable. CRA's decision was justifiable and de- fensible and determination not to accept form as submitted was not procedurally unfair. Minis- ter did not deprive company of any procedural rights because company could have filed form some 12 months earlier than it did when it filed its income tax return. AFD Petroleum Ltd. v. Canada (Attorney General) (May. 16, 2016, F.C., Keith M. Boswell J., T-309-15) 266 A.C.W.S. (3d) 510. Ontario Civil Cases Bankruptcy and Insolvency ARRANGEMENTS Application for extension of stay under Companies' Creditors Arrangement Act (Can.) was granted Applicant, debtor company, applied for extension of stay of proceedings under Companies' Creditors Arrangement Act (Can.). Application granted. Debtor established that circum- stances existed that made order appropriate and that it acted and was acting in good faith and with due diligence. Request for extension of stay was sup- ported by chief restructuring officer, monitor and principled stakeholders except for U Corp., who sought shorter extension. Debtor was entitled to longer stay it requested based on its estimation that sales and invest- ment process that was under- way would require more time than what U Corp. proposed to complete negotiations with suc- cessful bidder and satisfy any conditions. Longer extension furthered prospect of successful, going-concern restructuring. If that was not feasible then longer stay would be required to imple- ment other arrangements to sat- isfy claims of creditors. Evidence was not sufficient to require shorter extension. It was not ap- propriate to impose conditions requiring delivery of informa- tion by debtor. U.S. Steel Canada Inc., Re (May. 10, 2016, Ont. S.C.J., H. Wilton-Siegel J., CV-14-10695- 00CL) 266 A.C.W.S. (3d) 295. Conflict of Laws JURISDICTION Presumptive connecting factor was not rebutted GMC terminated Saab dealer- ship network in Canada. Defen- dant was incorporated to act as new franchisor and supplier for new Saab dealership network in Canada. Defendant made repre- sentations to plaintiffs regarding its plans for new Saab dealership network in Canada. Plaintiffs were approved as Saab franchi- sees. Parties entered into dealer agreements, which granted plaintiffs right to sell and service Saab motor vehicle and to sell Saab parts and accessories. On- tario and Alberta plaintiffs re- ceived disclosure document that did not contain financial state- ments for defendant although they were required by legislation. Disclosure document failed to disclose material facts. Plain- tiffs in Nova Scotia, Quebec and British Columbia received no disclosure document. Plaintiffs rescinded dealer agreements. Rescission required defendant to pay amount within 60 days. Defendant failed to pay amount. Plaintiffs sought declaration that they validly rescinded their dealer agreements pursuant to Arthur Wishart Act (Franchise Disclosure), 2000 (Ont.) and Franchises Act (Alta.). Plaintiffs sought compensation or dam- ages. Defendants brought mo- tion to set aside service ex juris of statement of claim asserting that California was more appro- priate forum. Motion dismissed. Court's jurisdiction over claim was established. Defendant car- ried on active business in Ontar- io. Presumptive connecting fac- tor was not rebutted. Defendants failed to establish that there was more appropriate forum than Ontario to fairly and efficiently dispose of litigation. Evidence of defendant's representatives could be taken in Windsor, which bordered Detroit. Dealer agreements specified that they were governed by law of Ontario. Trying claim in Ontario would avoid expense of proving On- tario law in foreign jurisdiction by expert evidence. Stuart Budd & Sons Ltd. v. IFS Vehicle Distributors ULC (May. 3, 2016, Ont. S.C.J., Mar- rocco A.C.J.S.C., Toronto CV-13- 476346) 266 A.C.W.S. (3d) 370. Contracts BUILDING CONTRACTS Builder's claim for set-off under Construction Lien Act (Ont.) was rejected Builder hired contractor to in- stall trim and accessories at casino project. Builder paid some but not all of contractor's invoices. Contractor brought claim against builder, alleging breach of contract and claiming $126,994.55. Builder alleged that damages due to contractor's de- faults on other projects exceeded outstanding invoices and as- serted right of set-off pursuant to s. 12 of Construction Lien Act (Ont.). Motion judge granted contractor's motion for sum- mary judgment in part, finding contractor entitled to payment of $61,696.31 of $126,994.55 al- legedly due. Motion judge held that, as contractor had not com- menced action pursuant to act and claimed neither benefit of act nor breach of its trust provi- sions, set-off provisions of s. 12 of act were not engaged. Motion judge held that equitable set-off did not arise on facts of case and was not genuine issue requiring trial. Builder appealed. Appeal dismissed. There was no basis to interfere with motion judge's rejection of builder's claim for set-off under act. As motion judge observed, contractor did not claim benefit of act, did not assert lien, and did not allege existence, let alone breach, of act's trust provisions, so s. 12 was not engaged. While contractor's framing of its claim did not gen- erally dictate builder's response, motion judge effectively held that ordinary breach of contract claim cannot be met with claim for set-off of trust funds under s. 12 of act where contractor has not asserted claim to trust funds in first place. Accordingly, builder's purported defence was not responsive to contractor's claim. In any event, set-off un- der s. 12 of Act was only avail- able on proof of specific circum- stances and particular consid- erations, including existence of trust funds against which set-off could be applied, but nei- ther party pleaded existence or breach of trust fund. Architectural Millwork & Door Installations Inc. v. Pro- vincial Store Fixtures Ltd. (May. 2, 2016, Ont. C.A., H.S. LaForme J.A., G. Pardu J.A., and L.B. Roberts J.A., CA C60951) Decision at 257 A.C.W.S. (3d) 30 was affirmed. 266 A.C.W.S. (3d) 356. Family Law CUSTODY Father's inability to set aside parental conf lict and meet needs of children was material change Parties divorced in 2012. Parties were parents of two girls, who were 13 and 11. Divorce order

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