Law Times

PAGE 14 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. FEDERAL COURT Immigration Application by refugee claim- ant for judicial review of deci- sion that he was neither Con- vention Refugee nor person in need of protection. Refugee claimant was Tamil citizen of Sri Lanka. Refugee claim- ant and his family had been displaced from their home in Jaffna to Sangaranthai by Lib- eration Tigers of Board completely disregarded future- looking profile evidence REFUGEE STATUS Eelam ("LTTE") in 1987. Refu- gee claimant and family tried returning later that year when they thought it was safe but soldier shot at them. Refugee claimant's father was killed and refugee claimant, his mother, and one brother were wound- ed. Refugee claimant and his family returned to Jaffna in 2004 aſter cease-fire was ne- gotiated. Refugee claimant was detained and questioned by Sri Lankan Army on two occa- sions in 2004 and on two occa- sions in 2006. Refugee claim- ant alleged his scars from 1987 shooting had led Sri Lankan Army to believe he was for- mer member of LTTE. Refugee claimant went to live with his sister in another city but was detained by Sri Lankan po- lice and told to leave. Refugee claimant leſt Sri Lanka in 2007, spent time in various coun- tries, and then passed through United States before coming to Canada in 2010. Refugee claimant the Tamil plied for refugee protection. Application granted; matter re- mitted for reconsideration. Im- migration and Refugee Board had been reasonable in find- ing refugee claimant not to be unsuccessfully ap- credible but had erred in failing to consider whether his claim had been established by other evidence. Board failed to ad- dress independent documen- tary evidence relating to risks refugee claimant would face as visibly scarred, Tamil male, aged 37, returning to Sri Lan- ka aſter failed refugee claim. Refugee claimant had repeat- edly referred to his scarring as significant part of his profile that placed him at risk. Refu- gee claimant had provided evi- dence from medical specialist confirming scars were consis- tent with bullet wounds. Refu- gee claimant had undoubt- edly wanted this risk assessed. Refugee claimant's counsel had made specific reference to ref- ugee claimant's evidence that scars stood out to Sri Lankan security forces and had been interpreted as combat injuries. Board completely disregarded future-looking profile evidence and documentary evidence relating to that profile. Docu- ments before board specifically mentioned scarring as risk fac- tor for ill-treatment as well as evidence of arrests for Tamils with particular profiles. Pathmanathan v. Canada (Minis- ter of Citizenship and Immigra- tion) (May 3, 2012, F.C., Russell J., File No. IMM-5913-11) 213 A.C.W.S. (3d) 1002 (21 pp.). Plaintiff claimed that their pat- ented landing gear system for helicopters had been breached by two landing gears used by respondent Claim describing use of cross piece in landing gear had been violated Intellectual Property PATENTS Industrial and plicant sought injunction in addition to damages includ- ing punitive damages. Defen- dant counter-claimed that pat- competitor. Ap- These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. ent was not valid on various ground. Action allowed. Court found that patent had been violated. Complaint by paten- tee pertained to two models of landing gears developed by defendant. With respect to the later model developed by de- fendant, the court found that defendant's design did not rep- licate the protected elements of design patented by plaintiff. However an earlier gear mode did violate the claims of the patent. This gear had never been used on a helicopter sold to a client, however, this was ir- relevant as it had been used at tradeshows to incite purchases and was withdrawn only when this lawsuit was filed. The court declined the defence that it was practising prior art in develop- ing the complained of ing gear. Defendant failed to establish that key features of patented design were available in publications which were issued prior to the patent in- voked by plaintiff. The experi- mentation defence of defen- dant was dismissed given that although gears manufactured which violated patent were in fact used for experiments and not sold on the market, they were not solely developed by defendant for this purpose and rather they were withdrawn only pursuant to this lawsuit. Counter arguments on validity were allowed in part, however, this did not prevent a single key claim of the patent from being upheld and found to be violated. Court held on facts that invention was not obvious. Court dismissed arguments premised on patent failing to fully disclose to be specious given that a person of ordinary skills in the art would be able to combine the knowledge of a skilled designer with the teach- ings of the patent to realize the protected design. The court did land- find that that fiſteen of sixteen claims of the patent failed on grounds of overbreadth and failure to establish utility. How- ever, critically claim 15 which described the use of an inte- grated front cross piece in the landing gear which improved ground resonance and load factor was found to be validly subjected to patent and had been violated by defendant. Eurocopter v. Bell Helicopter Tex- tron Canada Ltee (Jan. 30, 2012, F.C., Martineau J., File No. T-737-08) 213 A.C.W.S. (3d) 1004 (153 pp.). Police Applicant member of R.C.M.P. sought judicial review of deci- sion of designated officer fol- lowing Impossible to understand decision of designated officer DISCIPLINE concerning decision of union counsel to no longer represent him with respect to disciplin- ary notices applicant's grievance R.C.M.P. Applicant had re- quested to union that he select his own counsel, however this had been denied. Counsel in- ternal to union had refused to represent applicant in further proceedings related to disci- plinary measures on grounds of conflict of interest given that applicant's defence pertained to representation afforded to him by union. In ceasing to represent applicant, counsel had failed to give reasons and had further declined to pro- vide these to designated officer on grounds of privilege. Ap- plication allowed. Designated officer decision was subject to review under reasonable- ness standard. Applicant was entitled to representation pro- vided by union. There had been irregularities in proce- dure given that decision to no against him by longer represent applicant had come from lawyer whereas it ought to have been made by programme over, applicant was entitled to know reasons for decision which had never been provid- ed to applicant. Counsel had not informed decision-maker of such grounds, and decision- maker did not explain why she did not uphold applicant's grievance. Even if it could be inferred that grounds under- pinning decision were conflict of interest, it was not apparent what was the conflict with re- spect to lawyer concerned and all other lawyers of union. It was impossible to understand decision of designated officer without adding thereto which deprived it of qualities neces- sary to make decision reason- able, and thus case should be returned for director. More- by designated officer. Vaillancourt v. Canada (Procu- reur general) (Jan. 19, 2012, F.C., Bedard J., File No. T-2182- 10) Reasons in French. 213 A.C.W.S. (3d) 1032 (22 pp.). reconsideration ONTARIO CIVIL CASES Appeal Order granted temporary ac- cess to maternal grandmother. Mother fled jurisdiction with children. Father claimed he could not file notice of appeal in timely way because mother and father had jointly retained lawyer and father would have to get another lawyer. Father brought motion for leave to file notice of appeal. Length of delay of 23 days was minimal. There was no prejudice to ma- collaborated with mother to stall access LEAVE TO APPEAL Inference drawn that father July 23, 2012 • law Times Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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