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Page 14 November 14, 2016 • Law Times www.lawtimesnews.com CASELAW Federal Court of Appeal Civil Procedure AFFIDAVITS Applicant failed to demonstrate reviewable error Applicant gave birth in On- tario during period of time chosen by Statistics Canada for study linking birth records to census data. Privacy Commis- sioner dismissed applicant's complaint under Privacy Act (Can.) that birth records were used without her consent. Ap- plicant brought application for judicial review. Respondent Director-General for Statistics Canada research centres (D- G) filed two affidavits stating applicant's records were not used in study and that names were removed after linkage, minimizing any intrusion. Applicant brought unsuccess- ful motion to, among other things, have adverse inference drawn from D-G's affidavit. Motions judge determined that adverse inferences pur- suant to R. 81(2) of Federal Courts Rules (Can.) were not intended for inconsistencies or reliance on third-party evi- dence, that D-G's role put her in position to know facts sworn were true, that D-G did pro- vide some evidence of persons having personal knowledge, that affidavit was not clearly imprecise or plagued by incon- sistencies, and that matter was best left for application judge. Applicant appealed. Appeal dismissed. Applicant failed to demonstrate reviewable er- ror in motions judge's refusal to compel D-G to testify. As for applicant's request that ad- verse inference be drawn from fact that D-G's affidavits were based on information and be- lief, judge determined admissi- bility of affidavits by conduct- ing admissibility analysis based on personal knowledge of D-G and in so doing, committed no error. Motions judge correctly determined that D-G, by virtue of government responsibili- ties, was in position to depose to matters in question without necessarily having personal knowledge and that whether adverse inference should be drawn from otherwise admis- sible evidence was matter bet- ter left for application judge. O'Grady v. Canada (At- torney General) (Sep. 6, 2016, F.C.A., Trudel J.A., Near J.A., and Donald J. Rennie J.A., A-21- 16) Decision at 263 A.C.W.S. (3d) 31 was affirmed. 270 A.C.W.S. (3d) 648. Communications Law BROADCASTING Bell was providing telecommunications services in violation of Telecommunications Act (Can.) Bell Mobility offered live streaming of certain television stations and related program- ming services to customers, including video-on-demand service, to customers who sub- scribed to wireless voice plan, data plan or tablet plan, charg- ing customers not for data used but rather for time spent accessing the programs. Re- spondents filed complaint with Canadian Radio-television and Telecommunications Com- mission (CRTC), claiming that practice of exempting mobile TV services from data charges gives Bell an unfair advan- tage and unduly discriminates against their wireless custom- ers and Bell's competitors. Section 4 of Telecommunica- tions Act (Can.) provides that it does not apply to broadcast- ing by broadcasting under- taking. CRTC noted that Bell was involved in "broadcast- ing" but found that functions performed by Bell to establish data connectivity and provide transport over wireless access networks was the same wheth- er content being transported was mobile TV services, other broadcasting services or non- broadcasting services. CRTC also found that data connectiv- ity required to transmit pro- grams can only be established if customer acquires telecom- munications service. From customer's perspective, mobile TV services are accessed in same way such customers ac- cess other applications. CRTC concluded Bell was providing telecommunications services in violation of Act. Bell's appeal dismissed. Exemption applies only "in respect of broadcast- ing by a broadcasting under- taking", not all broadcasting. Person who has no control over content of programs and is only transmitting programs for another person, not trans- mitting such programs as broadcasting undertaking. Bell transmitted its mobile TV pro- grams simultaneously with its voice and other data commu- nications using same network. Transmission of voice and non- program data to customers is not "broadcasting" and Act not applicable. Reasonable result that all transmissions by Bell would be subject to same Act. Reasonable for CRTC to deter- mine that Bell, by transmitting programs as part of network that simultaneously transmits voice and other data content, was merely providing mode of transmission and not acting as broadcasting undertaking. Bell Mobility Inc. v. Klass (Jun. 20, 2016, F.C.A., Eleanor R. Dawson J.A., Wyman W. Webb J.A., and Donald J. Ren- nie J.A., A-193-15) 270 A.C.W.S. (3d) 517. Industrial and Intellectual Property PATENTS Competitor infringed valid patent Plaintiff patent owners, D Co., D Inc. and D ULC, owned pat- ent for polyethylene composi- tions and films. Patent owners brought action for patent in- fringement against defendant competitor N Corp. Competi- tor counterclaimed on ground that patent was invalid. Trial judge allowed action and dis- missed counterclaim on basis that competitor infringed valid patent. Judge found that own- ers' expert had properly repro- duced polymers representing those produced in competitor's reactors, and that competi- tor's products were "linear" or "substantially linear" as terms were defined in patent. Judge held that competitor's poly- mers had slope of strain hard- ening coefficient ("SHC") that infringed asserted claims of patent. Judge held that one of competitor's polymers satis- fied requirements of compo- nent of claim regarding weight, density and being heteroge- neously branched. Competitor appealed. Appeal dismissed. Judge did not err in law, was en- titled to prefer evidence of some experts over others, and did not make any palpable and overrid- ing error in assessing evidence. Judge did not err in inferring that SHC was determined us- ing load/elongation curve. As competitor did not contest in- fringement of SHC limitations if it was construed to refer to load/elongation curve, judge's finding that claims had been infringed was upheld. Judge did not err in construing "hetero- geneously branched" and did not use wrong test for finding that competitor's products had "heterogeneously branched" component. Judge did not err in construing word "comprising", found in all asserted claims, to mean "including, but not limit- ed to". While judge made over- sight in not dealing with par- ticular area of disagreement, it did not amount to palpable and overriding error. Nova Chemicals Corp. v. Dow Chemical Co. (Sep. 6, 2016, F.C.A., Wyman W. Webb J.A., Richard Boivin J.A., and Yves de Montigny J.A., A-379- 14) Decision at 245 A.C.W.S. (3d) 421 was affirmed. 270 A.C.W.S. (3d) 613. Federal Court Aboriginal Peoples BANDS First Nation was not denied procedural fairness by Tribunal's determination Complainant filed complaint under s. 7 and s. 10 of Canadian Human Rights Act. Canadian Human Rights Tribunal de- cision upheld complainant's claim that First Nation denied her employment in its fishery over several years because she was woman and, excluded her from captaining fishing ves- sel based on her marital status because First Nation had dis- pute with her husband follow- ing his captaincy of vessel in 2007. First Nation's practice was to deprive women of employ- ment opportunities in fishery. First Nation sought order set- ting aside Tribunal's decision and order setting aside portion of Tribunal's decision in which it found that two of complain- ant's complaints of retaliation were substantiated. First Nation brought applications for judicial review of Tribunal's decision in discrimination decision and re- taliation decision. Applications dismissed. Tribunal's decisions were justifiable, transparent, and intelligible. First Nation was 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. 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. 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