Law Times

Law Times • OcTOber 24, 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. Supreme Court of Canada Appeal PROCEDURE Standard of review for interpretation of standard form contracts was correctness Window cleaners improperly cleaning building windows, causing scratches and necessi- tating replacement of windows. Building owner and general contract entitled to claim cost of replacing windows against builders' risk insurance policy. Trial judge finding insurers li- able, determining that exclu- sion clause for "cost of making good faulty workmanship" ap- plied against insurers. Court of Appeal reversing trial judge's decision. Standard of review applicable to interpretation of standard form contracts was correctness. Ledcor Construction Ltd. v. Northbridge Indemnity Insur- ance Co. (Sep. 15, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Kara- katsanis J., Wagner J., Gascon J., Côté J., and Brown J., 36452) Decision at 251 A.C.W.S. (3d) 490 was reversed. 269 A.C.W.S. (3d) 753. Federal Court of Appeal Civil Procedure SETTLEMENT Plaintiff 's acceptance of defendants' offer was unconditional Plaintiff sued defendants with respect to trademark issues aris- ing from use of word Pinnacle in connection with sale of al- coholic beverages. Defendants made offer to settle pursuant to which claim and counterclaim in Federal Court action would be discontinued with each party to bear its own costs. Offer was accepted but dispute arose as to whether offer also included dis- continuance of Superior Court action. Each party brought mo- tion seeking to have its position ratified. Federal Court judge concluded that there was settle- ment of Federal Court action and counterclaim but that Supe- rior Court action was not settled. Permanent stay of proceedings was ordered with respect to defendants' counterclaim. De- fendants appealed. Appeal dis- missed. Federal Court judge did not make any error that could justify intervention. Arguments resting on notion that defen- dants intended to make offer to settle which included Superior Court action could not succeed. Words of offer to settle were unambiguous while evidence of surrounding circumstances including operation of R. 420 of Federal Courts Rules (Can.), did not support defendants' position. Defendants' settlement offer was intended to satisfy conditions of R. 420 and as result it dealt only with Federal Court action. Plain- tiff 's acceptance of defendants' offer was unconditional. Beam Suntory Inc. v. Do- maines Pinnacle Inc. (Aug. 31, 2016, F.C.A., J.D. Denis Pelle- tier J.A., Johanne Gauthier J.A., and A.F. Scott J.A., A-272-15) Decision at 254 A.C.W.S. (3d) 802 was affirmed. 269 A.C.W.S. (3d) 662. Constitutional Law CHARTER OF RIGHTS Assessment tools administered to Aboriginal inmates breached ss. 7 and 15 of Charter Defendant Correctional Service of Canada (CSC) used certain psychological tests or assess- ment tools to assess risk of crim- inal recidivism and psychopa- thy in inmates, which impacted institutional decisions such as those relating to parole eligibil- ity and security classifications. Plaintiff Aboriginal inmate brought action against CSC and wardens of institutions, alleg- ing that assessment tools were unreliable when administered to Aboriginal inmates such that their use breached his rights, including under ss. 7 and 15 of Canadian Charter of Rights and Freedoms. Action was allowed on basis that CSC's use of as- sessment tools breached s. 7 of Charter and s. 24(1) of Correc- tions and Conditional Release Act (Can.), with issuance of in- terim relief while remedy hear- ing was set to determine terms of final order. Defendants ap- pealed. Appeal allowed. Trial judge did not expressly consider whether plaintiff established on balance of probabilities that scores and conclusions gener- ated by assessment tools were inaccurate and unreliable when assessment tools were admin- istered to Aboriginal persons. Trial judge relied on expert testi- mony that there was no evidence that scores and conclusions pre- dicted recidivism in Aboriginal offenders as accurately as they did when administered to non- Aboriginal offenders. By relying on absence of evidence proving reliability of assessment tools, trial judge erred in law by failing to require plaintiff to establish his claim on balance of prob- abilities. Expert evidence was, as matter of law, insufficient to establish that assessment tools generated results that were inac- curate or unreliable in material way. Trial judge erred by failing to conclude that plaintiff failed to establish violation of his rights under s. 7 of Charter on balance of probabilities. Canada (Commissioner of Correctional Service) v. Ew- ert (Aug. 3, 2016, F.C.A., Marc Nadon J.A., Eleanor R. Daw- son J.A., and Wyman W. Webb J.A., A-421-15) Decision at 258 A.C.W.S. (3d) 320 was reversed. 269 A.C.W.S. (3d) 686. Federal Court Administrative Law JUDICIAL REVIEW There was no concern about court encroaching into areas of executive or legislative policy Minister of Health restricted im- portation of drugs from two of manufacturers' facilities. Min- ster's decision in issue varied terms and conditions of manu- facturers' drug and establish- ment licences in respect of facili- ties. Minister had since issued decision where it removed all terms and conditions on estab- lishment licences for facilities. Manufacturers applied for judi- cial review. Application granted. Judicial review was moot, as de- cision and restrictions on import it imposed ceased to exist. There was no live controversy between parties. Court exercised discre- tion to hear matter on merits as there was still adversarial con- text, and outcome of judicial review might impact any action for damages brought by manu- facturers related to import ban. Decision on merits would have practical effect on parties' rights, which mitigated concerns over judicial economy. There was no concern about court encroach- ing into areas of executive or leg- islative policy. Apotex Inc. v. Canada (Minister of Health) (Jun. 15, 2016, F.C., Michael D. Manson J., T-1653-15) 269 A.C.W.S. (3d) 602 Industrial and Intellectual Property COPYRIGHT Copyright holders had right to have identity of subscriber revealed and disclosed Copyright holders claimed that internet users had engaged in file sharing over internet, and there- by infringed copyright holders' copyrights in several films. Ap- plicants initiated proposed class proceeding claiming, amongst other things, declaratory and in- junctive relief against subscriber of internet service provider (ISP), whose identity was presently un- known to them. Copyright hold- ers brought motion for order compelling ISP to disclose any and all contact and personal in- formation of subscriber associat- ed with identified internet proto- col address at various times and dates. Motion granted. Copy- right holders adduced sufficient evidence to show that they had bona fide claim that unknown persons were infringing copy- right in their films. Consequent- ly, copyright holders had right to have identity of subscriber re- vealed and disclosed for purpose of pursuing their proposed class proceeding. Copyright holders were only entitled to disclosure by ISP of subscriber's name and address as recorded in ISP's re- cords. Release of information was to remain confidential and not be disclosed to any other par- ties without further court order and could only be used by copy- right holders in connection with their proposed class proceeding. ISP was entitled to payment of $100 per hour to assemble infor- mation and costs fixed at $500. Voltage Pictures, LLC v. John Doe No. 1 (Jul. 28, 2016, F.C., Keith M. Boswell J., T-662- 16) 269 A.C.W.S. (3d) 648. Tax Court of Canada Taxation INCOME TAX Taxpayer's appeal regarding redetermination of returns was granted Taxpayer mother had primary custody of son and daughter af- CASELAW REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an Enhanced listing. ENCHANCE YOUR LISTING TODAY! Untitled-3 1 2016-10-18 4:16 PM

• Cover