Law Times

Law Times • sepTember 19, 2016 Page 13 www.lawtimesnews.com CASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. Federal Court of Appeal Courts JURISDICTION Federal Court has jurisdiction to rule upon whether a proceeding subsists Allergan brought action in Federal Court against Apo- tex for patent infringement. Parties disagreed on whether settlement reached. Allergan's motion for order enforcing settlement was granted. Federal Court relied on initial exchange between the parties, suggesting that agreement was essentially in place following these com- munications. Following initial exchange, there was 23-month exchange of emails, including number of draft Minutes of Settlement. Discussions broke off but Federal Court found that email sent by counsel for Al- lergan on February 24, 2014 ac- cepted terms contained in draft Minutes of Settlement sent by Apotex on January 13, 2014. Federal Court concluded that although parties did not place signatures on formal agreement, they had reached agreement on all essential terms. Apotex's ap- peal was allowed. Federal Court has jurisdiction to determine whether patent infringement action has been settled and, if so, to enforce the settlement agreement. When contract law issue before the Court is part and parcel of matter over which Federal Court has statutory ju- risdiction, Federal Court has jurisdiction over the contract. Federal Court also has, as part of its plenary power, jurisdic- tion to rule upon whether or not a proceeding subsists. Existence or non-existence of settlement agreement affects status of pro- ceedings before the court. Apotex Inc. v. Allergan, Inc. (May. 18, 2016, F.C.A., M. Nadon J.A., Johanne Trudel J.A., and Da- vid Stratas J.A., A-204-15) Deci- sion at 252 A.C.W.S. (3d) 433 was reversed. 268 A.C.W.S. (3d) 548. Labour Relations BARGAINING UNIT Board found that employees should be included in first unit for purposes of ballot Canada Industrial Relations Board made decision in context of revising structure of bargain- ing units covering employees of French network regarding repre- sentation vote. Board found that employees were employees with- in meaning of Canada Labour Code and should be included in first unit for purposes of bal- lot. Broadcasting corporation brought application for judicial review. Application dismissed. Decision was made for sole purpose of getting things done quickly so that ballot could take place without delay. Application for judicial review was moot and declaration sought would have no practical use if granted. Société Radio-Canada c. Syndicat des communications de Radio-Canada (FNC- CSN) (July 19, 2016, F.C.A., Johanne Gauthier J.A., A.F. Scott J.A., and Yves de Montig- ny J.A., A-334-15) 268 A.C.W.S. (3d) 652. Federal Court Courts JURISDICTION Plaintiffs' claim was in pith and substance based on federal law Plaintiff RD was status Indian and partner of plaintiff R part- nership that had federal licence to sell tobacco products on reserve and to First Nations on different reserves across Canada. RD was charged with violations of On- tario and Alberta Tobacco Tax Acts for failing to possess provin- cial tobacco permits and federal tobacco licence was not renewed. Plaintiffs brought action against federal Crown, Attorney General of Canada, Minister of National Revenue, RCMP, Commission- er of RCMP, Canada Revenue Agency (CRA) employees, and RCMP officers. Prothonotary granted federal Crown's motion and struck statement of claim against all defendants except fed- eral Crown. Plaintiffs appealed in respect of CRA employees and RCMP officers (individual de- fendants). Appeal allowed. Indi- vidual defendants were re-added to style of cause. Prothonotary's order was clearly wrong by in- corporating new requirement of defendants' presence being vital to final issue of case in test to support finding of jurisdiction in Federal Court. It was not plain and obvious that Federal Court lacked jurisdiction to entertain claims against individual defen- dants, as three-part test in juris- prudence was met. Section 17(5) (b) of Federal Courts Act (Can.) conferred jurisdiction to Federal Court over acts and omissions of officers, agents or servants of Crown. Federal legislation, being Excise Act, 2001 (Can.) (EA) and Indian Act (Can.) (IA), provided sufficiently detailed framework to nourish Federal Court's ju- risdiction. Plaintiffs' claim was in pith and substance based on federal law and was governed by detailed federal statutory frame- work essential to outcome of case. EA and IA were federal leg- islation and clearly constituted "law of Canada" as used in s. 101 of Constitution Act, 1867 (Can.). Dickson v. Canada (July 20, 2016, F.C., Sylvie E. Roussel J., T-2547-14) 268 A.C.W.S. (3d) 538. Taxation INCOME TAX Explanation by decision-maker contained interpretive errors Plaintiff, having no income tax product for 2009 fiscal year, was subject of first arbitrary tax assessment. Canada Rev- enue Agency has taken recov- ery action against plaintiff for 2009 and 2010 years. In 2013, plaintiff 's accountant tried to send tax return electronically but during attempt he received error message. In response to plaintiff 's complaint as to de- ceptive nature of error mes- sage, Canada Revenue Agency sent letter maintaining posi- tion of not accepting statement submitted for 2009 fiscal year. Plaintiff brought application for judicial review against deci- sion by Canada Revenue Agen- cy not to accept statement. Prothonotary found that there was no jurisdiction to grant remedy sought as it would force Canada Revenue Agency to act in contravention of law. Plain- tiff brought motion to quash order of prothonotary ordering cancellation of judicial review application. Motion granted in part. Motion dismissed as related to decision of protho- notary to strike paragraphs of notice of application conclud- ing that minister could reassess in respect to statement of claim after three-year limitation pe- riod when it was not permitted by law. Motion granted as relat- ed relation to striking of para- graphs related to electronic is- sues. It was not plain and obvi- ous that plaintiff 's notice of ap- plication did not disclose cause of action in relation to error message. It was unclear under what legal authority electronic statement, which was produced within limitation period of three years, was dismissed. Ex- planation by decision-maker contained interpretive errors with regard to what constituted statement. 6075240 Canada Inc. c. Ministre du Revenu national (June 27, 2016, F.C., Peter An- nis J., T-387-16) 268 A.C.W.S. (3d) 684. Ontario Civil Cases Conflict of Laws JURISDICTION Forum selection clause in escrow agreement was enforced Real estate transaction con- templated plaintiff purchasing and then leasing back number of properties in Andorra to defendant CA. Agreement of purchase and sale required de- fendants to enter into escrow agreement and make deposit to be held in escrow. Agreement did not contain either choice of law or forum selection provi- sion. Escrow agreement was ex- ecuted and deposit was made by defendants. Sale did not close. Plaintiff brought action for damages for breach of contract in amount of deposit in escrow account. Defendants brought motion to stay action on basis that Ontario lacks jurisdiction simpliciter, or on basis that On- tario was not convenient forum. Motion dismissed. Essential na- ture of claim was entitlement to funds under escrow agreement. Escrow agreement gave Ontario jurisdiction simpliciter, and also contractually named Ontario as convenient forum for disputes. There was no evidence that en- forcing forum selection clause in escrow agreement in favour of Ontario would frustrate some clear public policy. Defendants failed to meet burden to show Andorra would clearly be more convenient forum. Action was to proceed in Ontario. Terracap Investments Inc. v. Credit Capital Immobilliari, S.A. (July 14, 2016, Ont. S.C.J. [Commercial List], Mesbur J., CV-15-11016-00CL) 268 A.C.W.S. (3d) 544. CASELAW REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! 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