Law Times

October 31, 2016

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Law Times • OcTOber 31, 2016 Page 13 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 To subscribe, please call 1-800-387-5164. Federal Court of Appeal Aboriginal Peoples GENERAL Judge held that s. 39 of Federal Courts Act (Can.) did not infringe treaty rights Plaintiff S Band and plaintiff E Band were treaty First Nations who surrendered their mineral interests in reserve to Federal Crown. Oil produced from re- serve was subject to price restric- tions and export tax from 1973 to 1985, as per oil price program cre- ated by Oil Export Tax Act (Can.) and Petroleum Administration Act (Can.). S Band brought action in 1989 and E Band brought ac- tion in 1992 on basis that Crown breached fiduciary and treaty du- ties as result of oil price program's application to reserve. Actions were divided into six phases, in- cluding "tax" or "Regulated Price Regime" issue. Federal Court judge granted Crown's motions for summary judgment dismiss- ing both actions relating to Regu- lated Price Regime issue as being time-barred. Judge held that limi- tations legislation was applicable to claims against Crown even where rights were constitution- ally-protected treaty and Ab- original rights. Judge found that claims were based upon Crown's breach of sui generis fiduciary or trust-like obligations requiring Crown to exempt Bands from in- direct impact of oil price program upon their royalty entitlement, which were subject to limitations defence. Judge found that Bands did not bring actions until well beyond applicable six-year pe- riod within discovery of cause of action under s. 4(1)(e) of Limita- tions of Actions Act (Alta.) (LAA). Judge held that s. 39 of Federal Courts Act (Can.) (FCA) did not infringe treaty rights, as honour of Crown did not require that damages claim for breach of fidu- ciary duty be exempted from lim- itations defence. Bands appealed. Appeals dismissed. Judge did not err in determining that issues were suitable for summary judg- ment, that s. 39 of FCA and s. 4(1) (e) of LAA were constitutionally applicable, and that claims were not for property held on express trust. Judge did not err in finding that entirety of S Band's claims in this phase were barred by applica- tion of s. 4(1)(e) of LAA. Ermineskin Indian Band v. Canada (Sep. 8, 2016, F.C.A., Marc Nadon J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A., A-325-16, A-326-15) Decision at 255 A.C.W.S. (3d) 1037 was affirmed. 270 A.C.W.S. (3d) 216. Administrative Law JUDICIAL REVIEW Canadian Transportation Agency fettered its discretion Appellant filed complaint with Canadian Transportation Agen- cy ("Agency") alleging that prac- tices of respondent relating to transportation of large persons were discriminatory, contrary to Air Transportation Regulations (Ont.) and contrary to prevision decision of Agency. Appellant relied on email from respondent to passenger. Appellant filed sub- missions regarding his standing to bring complaint and respon- dent responded. Agency dis- missed complaint of discrimina- tory practices filed by appellant against respondent on prelimi- nary basis that he lacked stand- ing to bring complaint. Appellant appealed under Canada Trans- portation Act. Appeal allowed. Decision was unreasonable. Agency fettered its discretion. Agency erred in superimposing jurisprudence with respect to standing on regulatory scheme, thereby ignoring wording of Act and its purpose and intent. Fact that complainant was not direct- ly affected by fare, rate, charge, or term or condition complained of and may not even meet require- ments of public standing, was not to be determinative. If objective was to ensure that air carriers provided their services free from unreasonable or unduly discrim- inatory practices, one should not have to wait until having been subjected to such practices before being allowed to file complaint. There was no sound reason to limit standing under Act to those with direct, personal interest in matter. Lukács v. Canadian Trans- portation Agency (Sep. 7, 2016, F.C.A., Wyman W. Webb J.A., A.F. Scott J.A., and Yves de Montigny J.A., A-135-15) 270 A.C.W.S. (3d) 63. Civil Procedure DISCOVERY Continuation of examination by teleconference was ordered Plaintiff competitor H Corp. brought action alleging that de- fendant patent owner K's patent was invalid. Patent owner and others counterclaimed against competitors H Corp., C Ltd., and C Inc. that competitors had infringed patent. Competitors sought two-day examination of each inventor, who lived in United Kingdom, but patent owner terminated examinations after one day. Prothonotary, who was case managing litigation, granted, among other orders, that additional examination of two inventors would be limited to one-half day per inventor by teleconference. Motion judge dismissed competitors' appeal. Competitors appealed. Appeal dismissed. Since parties dis- agreed on duration of examina- tions, only court could make that determination. Prothonotary agreed that continued exami- nation was not vexatious or op- pressive. Prothonotary had full knowledge of facts and issues and was satisfied that additional one-half day per inventor would be sufficient to complete exami- nation. Prothonotary did not err in ordering continuation of examination for one-half day by teleconference. Motion judge did not err in law or make overriding and palpable error. Hospira Healthcare Corp. v. Kennedy Institute of Rheuma- tology (Aug. 31, 2016, F.C.A., M. Nadon J.A., J.D. Denis Pelletier J.A., Donald J. Rennie J.A., Yves de Montingny J.A., and Mary J.L. Gleason J.A., A-303-15) Decision at 267 A.C.W.S. (3d) 31 was af- firmed. 270 A.C.W.S. (3d) 50. Federal Court Industrial and Intellectual Property COPYRIGHT Applicant was entitled to statutory damages under Copyright Act (Can.) Parties had settled prior instanc- es where respondent infringed applicant corporation's copy- right in numerous computer programs, and injunction had been granted. Private investiga- tor retained by corporation at- tended store where respondent offered to sell refurbished com- puter that included Windows 7 operating system, and he in- stalled Microsoft Office, but no licence or DVD was provided for operating system or software. Private investigator attended store again and purchased refur- bished computer with Windows 7 operating system and Micro- soft Office, but he dealt with someone other than respondent. Corporation applied for relief, in- cluding damages for selling unli- cenced copies of its programs. Application granted in part. Evi- dence established that respon- dent sold unlicenced copies of corporation's programs on one occasion and infringed corpo- ration's copyright. Corporation was entitled to statutory dam- ages under Copyright Act (Can.). Corporation was not awarded statutory maximum because conduct of respondent was not egregious, copyrights were only infringed on one occasion and awarding statutory maximum would amount to damages of $100,000, which was out of pro- portion to any profit made. Re- spondent failed to abide by terms of prior settlement agreements and with terms of prior injunc- tion, and there is clear and com- pelling need to deter respondent from future infringing activities. Respondent was ordered to pay statutory damages of $10,000 for each infringement of cor- poration's computer programs that were unlawfully copied and distributed, for total of $50,000. Punitive and exemplary dam- ages were warranted based on re- spondent's misconduct, need for denunciation and to deter him from any future infringement of corporation's copyright in its computer programs. In circum- stances, respondent was ordered to pay punitive and exemplary damages of $50,000. Microsoft Corp. v. Liu (Aug. 19, 2016, F.C., Keith M. Boswell J., T-797-15) 270 A.C.W.S. (3d) 179. TRADE MARKS There was no cause to reduce compensatory and punitive awards Court accepted plaintiffs' un- contradicted evidence with re- spect to four instances where counterfeit Chanel merchandise was offered for sale or sold in conventional retail store. Plain- tiffs obtained judgment against LCK and 694. Plaintiffs' action against SL was dismissed. Court granted declaratory relief con- firming validity and ownership of Chanel trademarks; injunc- 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 captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: 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 with an Enhanced listing. ENCHANCE YOUR LISTING TODAY! Untitled-3 1 2016-10-24 3:03 PM

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