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Page 18 November 21, 2016 • Law Times www.lawtimesnews.com ing for sale and manufacture of their oral contraceptive pills. Owner was entitled to order en- joining A Inc. and C Co. from manufacturing, using, and sell- ing oral contraceptive tablets that infringed claims. Owner was entitled to order directing A Inc. and C Co. to deliver up or destroy under oath, all articles that would offend injunction. Issue of damages or accounting of profits was to be heard in sec- ond phase of trial. Bayer Inc. v. Cobalt Phar- maceuticals Co. (Sep. 7, 2016, F.C., Simon Fothergill J., T-1379-13, T-1468-13, T-1368-14) 270 A.C.W.S. (3d) 837. TRADE MARKS Trademarks Opposition Board rejected opposition to trademark application Applicant opposed respon- dent's trademark application. Trademarks Opposition Board rejected applicant's opposition to trademark application by respondent. Board rejected as- sertion that respondent's pro- posed mark was not distinctive. Applicant asserted that Board's decision was unreasonable be- cause evidence of multiple res- taurants using marché or mar- ket as part of their name meant that mark could not reason- ably be seen as distinctive. Ap- plicant appealed. Application dismissed. Decision was justi- fiable, transparent, and intel- ligible, and fell within range of possible, acceptable outcomes that were defensible in respect of facts and law. Board's deci- sion was principally focused on whether applicant met its initial evidentiary burden to adduce sufficient admissible evidence from which it could reasonably be concluded that facts alleged to support each ground of opposition existed. It was open to and reasonable for Board to conclude that evi- dence offered by applicant was not sufficient to show that mark lacked distinctiveness such that it was incapable of functioning as source identifier for respon- dent's services. Although Board interspersed its distinctiveness analysis with certain aspects of its descriptiveness analysis, it did not render its decision unreasonable when viewed as whole. Richtree Market Restau- rants Inc. v. Mövenpick Hold- ing AG (Sep. 15, 2016, F.C., Keith M. Boswell J., T-1889-15) 270 A.C.W.S. (3d) 838. Tax Court of Canada Taxation GOODS AND SERVICES TAX Alternative method of valuation was not warranted in circumstances Registrant operated restaurant with 60 seats in dining room and 66 seats on terrace, with liquor licence. Registrant's ac- counting books submitted to Minister were incomplete and imprecise according to Minis- ter, and Minister had to recon- stitute total amount of supplies made by registrant using sev- eral indirect methods of veri- fication for period in question. Analysis of various elements from registrant or its suppli- ers, such as bank deposits, pur- chases confirmed and reported, hours worker, placemats used, revealed significant deviation from sales reported in regis- trant's accounting books. Min- ister considered sales of 3,228 meal receipts, from 50 random- ly targeted days over period of 166 days. Total sales accounted from receipts amounted to $32,655.79. 1,676 of targeted foods from meal receipts gen- erated a ratio of $19.48. Dif- ference between declared sales and reconstructed sales was $488,631.67 for years 2007 to 2009. Minister therefore in- creased total amounts of target- ed foods acquired by registrants by attributing $19.48 ratio for each of 2007, 2008, and 2009 fiscal years in determining re- constituted amount of taxable supplies. Registrant appealed. Appeal allowed. Alternative method of valuation was not warranted in circumstances, and was highly questionable. Despite alternative verification method, assessed amounts were reduced by 40 per cent demon- strating that glaring error were committed when checking. Penalties for gross negligence were also cancelled and no contribution for misappropri- ate of funds was issues by CRA against registrant. Both experts came to conclusion that valu- ation method led to bias and instability as assumptions that underlie ration estimation were not met. Valuation method was wrong given over-representa- tion of Mondays and Tuesdays when only two meals rather than three meals were served on those particular days. Instead of resorting to indirect method of valuation, tax authorities should have first concluded, on reasonable grounds, that books, records, and supporting docu- ments provided by registrant were not reliable or contained inaccuracies or significant de- ficiencies. 2741-2568 Québec Inc. c. R. (Sep. 22, 2016, T.C.C. [General Procedure], Réal Favreau J., 2011-3640(GST)G) 270 A.C.W.S. (3d) 891. Ontario Civil Cases Contracts FRANCHISE AGREEMENTS Franchisor was not excused from statutory mandatory disclosure obligations Franchisor provided franchisee with Franchise Disclosure Doc- ument (FDD) that indicated franchisor had "no reasonable means of estimating or predict- ing" costs of converting exist- ing premises in lieu of building new premises. Franchisee and guarantors executed franchise agreement at time when loca- tion for franchise had not been determined, and franchisee later signed sublease before seeing head lease. Conversion costs ended up being in range of costs for building new prem- ises, and franchisee and guar- antors ultimately served notice of rescission. Franchisee and guarantors commenced action against franchisor and related companies for, among other things, declaration that fran- chise agreement was validly rescinded by them. Franchisee and guarantors brought mo- tion for partial summary judg- ment relating to entitlement to rescind franchise agreement. Franchisor and related compa- nies brought cross-motion for summary judgment dismissing claim of franchisee and guar- antors in its entirety. Motion granted; cross-motion granted in part. Franchisor and related companies were not excused from their statutory mandatory disclosure obligations in s. 5 of Arthur Wishart Act (Franchise Disclosure), 2000 (Ont.) simply because location of proposed franchise was not identified before franchise agreement was signed. Form of lease included in FDD was materially incom- plete, and FDD expressed un- certainty about costs. It was insufficient for franchisor to simply say that required mate- rial information was not known at time of disclosure, and plain words of Act did not allow for introduction of concepts of waiver or contracting out of disclosure obligations. It was premature to purport to deliver FDD under Act and enter into franchise agreement, and no- tice of rescission under s. 6(2) of Act was timely and effective since lack of disclosure was egregious. Peripheral claims were dismissed since franchisee and guarantors did not provide any focussed argument seeking to demonstrate that either of those claims had been proved or required trial. Raibex Canada Ltd. v. ASWR Franchising Corp. (Sep. 7, 2016, Ont. S.C.J., W. Matheson J., CV-14-518145) 270 A.C.W.S. (3d) 752. Debtor and Creditor FRAUDULENT TRANSACTIONS Claim to set aside transfer of land as fraudulent conveyance was dismissed Plaintiffs obtained judgment against defendants. SM made payments subsequent to judg- ment. One of plaintiffs signed release with regard to debt owed. Plaintiffs asserted defen- dants represented that plaintiffs would be paid notwithstanding bankruptcy. Plaintiffs brought claim seeking to set aside trans- fer of land as fraudulent convey- ance based on allegation that SM at time of transfer was in- debted to plaintiff pursuant to unpaid judgment debt. Defen- dants asserted SM was released from any liability by assignment in bankruptcy and subsequent discharge from bankruptcy. Defendants asserted that SM acquired his interest in land after date of his discharge and transfer of land was made more than 10 years after his discharge from bankruptcy. Defendants brought motion for summary judgment to dismiss plaintiffs' action. Motion granted. There was no genuine issue requir- ing trial. Defendants made out prima facie case . Claim was based on SM being indebted to plaintiffs at time of transfer in 2010, but at time of transfer SM was released from his obligation under judgment as result of dis- charge from bankruptcy. There was no basis on which to set aside transfer of lands made by SM 10 years after his discharge from bankruptcy and where he acquired lands three years after discharge from bankruptcy. Re- lease and confirmation of finan- cial settlement, and payment were sufficient to release SM from all further payments trace- able to judgment, or any alleged agreement to pay judgment not- withstanding SM's discharge from bankruptcy. Evidence failed to establish that plaintiff who did not sign release was aware of agreement to withhold filing proof of bankruptcy in exchange for promise by defen- dants to pay judgment. Failure of SM to list plaintiff as credi- tor when making assignment in bankruptcy had no effect on validity of SM's discharge from bankruptcy. Pleadings could not be interpreted as basis of claim in contract or detrimental reliance arising out of alleged representations by defendants at time of SM's assignment in bankruptcy. Youssef v. Meddaoui (Aug. 31, 2016, Ont. S.C.J., Victor Mitrow J., 5261/11) 270 A.C.W.S. (3d) 770. Employment WRONGFUL DISMISSAL Summary judgment for wrong ful dismissal action was granted Employer was insurance com- pany with whom employee had held number of claim adjus- tor positions over 21 years and three months. Employee was dismissed at age 52 while em- ployed in intermediate level po- sition adjusting automobile in- surance claims exclusively. Em- ployer provided employee with minimum notice entitlements under Employment Standards Act, 2000 (Ont.) plus access to career transition counsel- ling. Employee brought action against employer for damages for wrongful dismissal. Em- ployee brought motion for sum- mary judgment. Motion grant- ed. Reasonable notice period was 16 months' compensation plus benefits and RRSP contri- butions, less payments received from employer under Act and subject to trust in favour of employer for any amounts earned during remainder of notice period. Reduction of 10 per cent for failure to mitigate as submitted by employer was not reasonable or warranted in circumstances. Efforts of em- ployee in searching for com- parable employment had been reasonable in all respects. There was no merit in employer's po- sition that employee had not diligently pursued comparable employment for approximately five weeks following her ter- mination since authorities in- dicated employee was not ex- pected to immediately begin search for new job. Restricting job search to areas within rea- sonable commute time in large employment marketplace with increasingly onerous commute times did not render employee's job search unreasonable. Em- ployer did not establish that any positions suggested by em- ployer to which employee had not applied would have resulted in comparable employment had she applied. Fermin v. Intact Finan- cial Corp. (Sep. 14, 2016, Ont. S.C.J., A.J. O'Marra J., CV-15- 542692) 270 A.C.W.S. (3d) 773. Equity GENERAL Application to set aside home transfers was granted Mother and father owned home and purchased another home for daughter's business during time of need. Mother and father prepared wills leav- ing their entire estates to each other, and then to daughter. Mother and father were some- what vulnerable due to sig- nificantly diminished capacity just before father was involved in automobile accident while impaired and without driver's licence. Daughter suggested that mother and father transfer homes to her to protect them from creditors, and homes were ultimately transferred to her. Mother and father later sought return of at least one home, and daughter apparently refused. Mother and father brought ap- plication to set aside transfers. Application granted. Daugh- ter's suggestion that equitable relief should be refused on ba- sis that mother and father did not come to court with clean hands in light of intention to shelter assets from creditors was rejected. Doctrine of clean hands did not apply. Authority cited by daughter was entirely distinguishable from current facts. First, entire idea originat- ed with daughter as transferee. Second, there was no sugges- tion on evidence that any credi- tor was in fact deceived in any manner, shape, or form. Bannister v. McGraw (Aug. 25, 2016, Ont. S.C.J., S. Dunphy J., Toronto CV-15-538201) 270 A.C.W.S. (3d) 887. CASELAW

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