Law Times

Law Times • November 21, 2016 Page 17 www.lawtimesnews.com Federal Court of Appeal Civil Procedure PLEADINGS Plaintiff 's legal propositions were incoherent Plaintiff 's earlier claims before Federal Court were dismissed on basis that statements of claim did not raise any cause of action and were bereft of any chance of success, or that statements of claim had no rea- sonable prospects of success. Plaintiff appealed. Appeal dis- missed. There was no error in those conclusions. Legal propo- sitions put forward by plaintiff were incoherent and devoid of any legal meaning. Plaintiff had assembled words, phrases, and concepts which had some meaning in context in which they were originally found but had none whatsoever in use which he had made of them. Al- though plaintiff 's claims shared some characteristics attributed to organized pseudo commer- cial argument (OPCA) litigants, OPCA phenomenon was not threat to orderly administra- tion of justice to present court at current time. Plaintiff and his co-litigants were entitled to be heard but not entitled to blame their lack of success on bad faith and corruption of judges who hear and decide cases and on collusion between lawyers who represent Crown and judges and prothonotaries who heard their cases. Allega- tions would have consequences if plaintiff were to continue in present vein. Dove v. R. (Sep. 15, 2016, F.C.A., J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and D.G. Near J.A., A-552-15) Decision at 261 A.C.W.S. (3d) 299 was affirmed. 270 A.C.W.S. (3d) 739. Contracts PERFORMANCE AND BREACH Appellant breached its level of service obligations Respondent operated grain ele- vator facilities. Prior to construc- tion of facilities parties entered into confidential contract. For several weeks respondent did not receive all of railcars that it ordered, and no car were deliv- ered for six weeks to any of re- spondent's facilities. Canadian Transportation Agency found appellant breached its level of service obligations to respon- dent for several weeks. Appel- lant appealed. Appeal dismissed. Agency did not err in its applica- tion of s. 113 to s. 116 of Canada Transportation Act. Agency did not err in concluding that ap- pellant could not now complain that respondent's orders were unreasonable because it agreed to supply number of cars ordered by respondent. Appellant was bound by agreement reached with respondent. Whether confi- dential contract was confidential contract for purposes of s. 113(4) of Act was not matter that could be appealed under Act. Agency's interpretation of "Service Unit" as used in confidential contract was not extricable question of law and no appeal lay under Act from the Agency's interpretation of term. There was no merit to re- spondent's argument that it was denied procedural fairness. Canadian National Rail- way v. Louis Dreyfus Com- modities Canada Ltd. (Sep. 16, 2016, F.C.A., J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and Yves de Montigny J.A., A-140- 15) 270 A.C.W.S. (3d) 681. Immigration REFUGEE STATUS Motion for reconsideration was dismissed Immigration Appeal Division of the Immigration and Refu- gee Board rendered decision. Appellant was denied leave to start judicial review, finding motion had no merit. Appel- lant's motion for reconsidera- tion was dismissed. Minister's submissions that special rea- sons were present warranting $1,000 award of costs against counsel personally were accept- ed and award was made. Appel- lant appealed order dismissing reconsideration order. Counsel appealed costs award. Registry referred notice of appeal for di- rection asking whether notice of appeal should be removed from court file and file closed because of statutory bar against appeals in such matters. Notice of appeal was ordered removed from court file. Statutory bar against appeals applied. Im- migration and Refugee Protec- tion Act (Can.) was Act of Par- liament and s. 72(2)(e) barred appeals to this Court. Filing of notice of appeal was not in ac- cordance with Act. Costs award was part and parcel of recon- sideration motion and related to counsel's conduct of motion. Request to recognize new ex- ception to bar against appeal with respect constitutional questions or issues relating was rejected. Appellants' failure to advance their constitutional arguments in Federal Court disabled this Court from con- sidering them. Wong v. Canada (Minister of Citizenship and Immigra- tion) (Sep. 15, 2016, F.C.A., Marc Noël C.J., Eleanor R. Dawson J.A., and David Stra- tas J.A., A-235-16) 270 A.C.W.S. (3d) 835. Taxation INCOME TAX Minster refused to order issuance of certificate Taxpayer was film production company. Taxpayer submitted production to Minister of Ca- nadian Heritage for completion certificate as preliminary to application for film tax credit. After delays in response tax- payer informed production ineligible as a "game show." Taxpayer applied for judicial review and sought ruling from court that production quali- fied for credit. Court ruled Minister must consider actual or main character of produc- tion in determining whether production is "Canadian film or video production" under s.1106(4) or "excluded produc- tion" under s.1106(1) of Income tax Act Regulations (Can.) and returned matter to Minister. Minister appealed and taxpayer cross-appealed refusal to order issuance of certificate. Minis- ter's appeal allowed, taxpayer's appeal dismissed. Minister's role to ensure that it did not fall within excluded categories. Ex- clusion of production of game, questionnaire or contest wide enough to incorporate produc- tion involved here, regardless of relative importance given to quiz aspect of historical or informational content. Not for reviewing court to incorporate into legislation or regulation of terms or parameters that are not there. Minister's decision based on reasonable interpretation of Regulations, and was taken after decision process in which all bodies recommended exclu- sion of production. Minister was justified in ignoring evalu- ations which had been made other types of production as she had to determine whether pro- duction was an excluded genre by considering wording of Reg- ulation. No failure of procedur- al fairness. Decision was purely administrative in nature, and process established had none of characteristics of quasi-judicial procedure. Only obligation was for Minister to send notice of refusal and give opportunity to provide additional information. Not adequacy of tools for mak- ing recommendations which is subject of judicial review but only final decision. Canada (Procureur gé- néral) c. Zone3-XXXVI Inc. (Sep. 27, 2016, F.C.A., Johanne Trudel J.A., Richard Boivin J.A., and Yves de Montigny J.A., A-60-16) Decision at 262 A.C.W.S. (3d) 813 was reversed. 270 A.C.W.S. (3d) 894. Federal Court Industrial and Intellectual Property PATENTS Owner was entitled to declaration that claims of patent were not invalid Plaintiff patent owner BPA and licensee B Inc. owned patent for micronized, uncoated, and rap- idly dissolving oral contracep- tive pill with low hormone dose. Defendant generic drug compa- nies C Co. and A Inc. sold oral contraceptive pills with similar characteristics. Owner brought action for declaration of in- fringement by C Co. and A Inc. and related relief. C Co. and A Inc. brought counterclaims for declarations that claims were invalid. Action allowed; coun- terclaims dismissed. Claims were valid and infringed by C Co. and A Inc.. Owner was entitled to declaration that three claims of patent were not invalid based on grounds of obviousness, anticipation, overbreadth, insufficiency or ambiguity of specification, or inutility. Owner was entitled to declaration that three claims of patent had been infringed, either directly or by inducing infringement, by A Inc. and C Co.'s sale, importation, offer- 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. 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. 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