Law Times

Page 14 January 30, 2017 • Law Times www.lawtimesnews.com Intellectual Property PATENTS Validity of patent Application for notice of compliance was not granted A Inc. applied for notice of com- pliance (NOC) to enable it to market its generic version of tadalafil. Relying on doctrine of double patenting, A Inc. con- tended that relevant claims of '784 patent claimed nothing new or inventive relative to claims of '377 patent. E Inc., holder of '784 patent, brought application for order of prohibition to prevent Minister from issuing NOC to A Inc.. In another, similar case ("M case"), argument as to double pat- enting turned on date at which comparison between claims of '377 and '784 patents should be made. Federal Court of Appeal decided in M case that contest was between priority dates of two patents and that, on facts, choice of date did not matter as result was same. In both cases, E Inc. was successful in seeking pro- hibition order. In present case, A Inc. appealed, arguing that M case should not be followed, on ground that it did not follow deci- sion of Supreme Court of Canada (SCC). Appeal dismissed. A Inc. fastened on repeated references in SCC case to particular year, con- tending that it was SCC judge's intention to decide question of double patenting as of publica- tion date of later of two patents. It was improbable that SCC judge would settle significant point in law of double patenting by impli- cation and without addressing it directly. SCC case did not decide that date at which claims of two patents in issue in double patent- ing case were to be compared was date of publication of later patent. A Inc.'s argument that M case was wrongly decided failed. Apotex Inc. v. Eli Lilly Cana- da Inc. (2016), 2016 CarswellNat 5564, 2016 FCA 267, J.D. Denis Pelletier J.A., Richard Boivin J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 2945, 2015 Carswell- Nat 8668, 2015 FC 875, 2015 CF 875, Mary J.L. Gleason J. (F.C.). Labour and Employment Law PUBLIC SERVICE EMPLOYEES Termination of employment Worker's application for judicial review was dismissed Worker was on probationary pe- riod and made romantic advanc- es towards co-worker. Worker was rejected on probation dur- ing his 12-month probationary period and he received pay in lieu of notice, in conformity with s. 62(2) of Public Service Employ- ment Act. Worker unsuccess- fully brought grievance. Worker brought application for judicial review. Application dismissed. Evidence permitted adjudicator to conclude that work lost posi- tion during probation period for valid motives related to conduct in exercise of public position. D'Aoust c. Canada (Procu- reur Général) (2016), 2016 Car- swellNat 5927, 2016 CAF 295, Jo- hanne Trudel J.A., Scott J.A., and Boivin J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 8715, 2015 CarswellNat 8716, 2015 PSLREB 94, 2015 CRTEFP 94, Steven B. Katkin Adjud. (Can. P.S.L.R.E.B.). Natural Resources FISH AND WILDLIFE Practice and procedure Claims based on misfeasance in public office should proceed to trial Defendant Minister of Fisheries and Oceans established manage- ment system that allegedly re- duced each license-holder's share of total allowable catch of snow crab. Plaintiff license-holders and associated companies brought action against defendant, with al- legations including expropriation without compensation, breach of contract, unjust enrichment and misfeasance in public office. Defendant's motion for sum- mary judgment was granted in part, with claims for breach of contract and relating to integra- tion of certain fishing areas dis- missed and claims relating to expropriation, misfeasance and unjust enrichment claim found to raise genuine issues for trial. Defendant appealed; plaintiffs cross-appealed from dismissal of claims. Appeal allowed in part; cross-appeal dismissed. As mat- ter of law, plaintiffs' claim of ex- propriation without compensa- tion could not succeed as fishers did not have proprietary interest in uncaught fish or fishery and did not have right to compensa- tion for reduction in quota. Doc- trine of legitimate expectations could not be used to enforce sub- stantive expectations of certain levels of quotas. Plaintiffs' unjust enrichment claim could not suc- ceed because, as legal matter, they did not suffer deprivation that benefitted defendants as that would require proprietary inter- est in unallocated quota that in law they did not have. There was no basis for interfering with mo- tion judge's finding that claims based on tort of misfeasance in public office should proceed to trial. Motion judge did not err in concluding that evidence could not prove that Minister made any offer that quota would only be freed up by buy-backs or that plaintiffs accepted any such of- fer or that either party intended to enter into binding agreement. Motion judge did not commit palpable and overriding error in weighing and assessing evidence about whether integration of fishing areas resulted in damages to plaintiffs. Summary judgment would be granted on all claims except for claim in misfeasance in public office. 100193 P.E.I. Inc. v. R. (2016), 2016 CarswellNat 5815, 2016 FCA 280, J.D. Denis Pelle- tier J.A., David Stratas J.A., and Wyman W. Webb J.A. (F.C.A.); reversed (2015), 2015 Carswell- Nat 8423, 2015 CarswellNat 8424, 2015 FC 932, 2015 CF 932, Keith M. Boswell J. (F.C.). Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans Application for judicial review was dismissed Applicant unsuccessfully applied for disability pension under Can- ada Pension Plan. Applicant's appeal was dismissed by Review Tribunal. Applicant's application, eight years later, to have Review Tribunal's decision rescinded or amended on basis of new evi- dence was dismissed by General Division of Social Security Tri- bunal as statute-barred and not supported by evidence meeting criteria for new evidence. Ap- plicant's appeal was dismissed. Applicant applied for judicial re- view. Application dismissed. Ap- peal Division of Tribunal found that General Division correctly set out legal test as to what consti- tuted "new facts" under Plan, that General Division properly set out both evidence presented to Review Tribunal and asserted to constitute new facts and did not err in assessing evidence asserted to constitute new facts. Applicant did not demonstrate any error in findings of Appeal Division that would justify intervention. Ap- peal Division's decision was justi- fied, transparent and intelligible and it fell within range of possible, acceptable outcomes that could be defended on basis of facts and law. Appeal Division correctly re- fused to consider medical report that was not in evidence before General Division. While Appeal Division's decision to grant leave to appeal to applicant was based only on limitations issue and not on new evidence question, its in- terpretation of its home statute as permitting it to consider all of the grounds raised on appeal was not unreasonable. It was unusual that leave was granted, as legal argu- ment that application to reopen on ground of new evidence was not statute-barred had no merit because it was not supported by evidentiary foundation. Mette v. Canada (Attorney General) (2016), 2016 Carswell- Nat 5792, 2016 FCA 276, Elea- nor R. Dawson J.A., D.G. Near J.A., and Judith M. Woods J.A. (F.C.A.). Ontario Civil Cases Administrative Law REQUIREMENTS OF NATURAL JUSTICE Right to hearing Reasons of municipal police services board were inadequate Applicant taxi company had license to run accessible taxi service revoked, by decision of municipal police services board. Taxi company claimed that deci- sion was made without sufficient reasons. Taxi company applied for judicial review of board's de- cision. Application granted. New hearing ordered. There was con- f licting evidence as to whether taxi company had vehicles on road without insurance, and whether they had office open at all times. Board's decision did not resolve conf licts. Reasons were inadequate as whole. Revo- cation had to remain in interim, before new hearing took place. Guelph Taxi Inc. v. Guelph Police Service (2016), 2016 Car- swellOnt 18684, 2016 ONSC 7383, Dambrot J., Hambly J., and Mew J. (Ont. Div. Ct.). Bankruptcy and Insolvency PRACTICE AND PROCEDURE IN COURTS Appeals Leave to appeal order approving sale process was dismissed Company in which G was share- holder went bankrupt. Estate trustee sought offers for compa- ny's assets and arranged auction. Only bidders were G and brother of another shareholder. Auction was unsuccessful. Trustee sought court approval to conduct second auction. G's request to adjourn motion for approval was denied and order approving sale process granted. G did not participate in second auction and company's assets were sold to other bidder. G brought motion for leave to ap- peal order approving sale process. Motion dismissed. Proposed ap- peal did not satisfy test for leave. Issues raised by G were not of general importance to practice of bankruptcy and insolvency mat- ters or to administration of justice as whole. Motion judge's decision not to adjourn proceeding and decision to approve sale process were highly fact-specific and were exercise of judge's discretion. Nei- ther ground of appeal was prima facie meritorious. There was nothing to suggest error in prin- ciple or improper exercise of dis- cretion. Proposed appeal would unduly hinder progress of bank- ruptcy proceedings. IceGen Inc., Re (2016), 2016 CarswellOnt 18630, 2016 ONCA 907, E.E. Gillese J.A., M.L. Ben- otto J.A., and L.B. Roberts J.A. (Ont. C.A.). Business Associations SPECIFIC MATTERS OF CORPORATE ORGANIZATION Shareholders Action for breach of contract was dismissed Shareholder liability. Plaintiff K set up corporation, plaintiff "863 Inc.," to manufacture and sell powder-compacting presses. K persuaded his friend, defendant H, to join him in business. When 863 Inc. needed operating funds, it entered into unsecured loan agreement with company con- trolled by K's in-laws. When 863 Inc. ceased operations, K brought action against H for half of 863 Inc.'s liabilities on basis that he and K had agreed they each would be responsible personally for half of corporation's debt. Trial judge dismissed action for breach of contract and plaintiffs appealed. Appeal dismissed. Trial judge correctly stated that sharehold- ers have limited liability and that in absence of personal guarantee, shareholder in his capacity as such is not liable for any act or liability of corporation. To find that share- holders of corporation have de- parted from that basic principle, claimant would have to establish that they had agreed to assume personal liability for corporate debt. Trial judge did not commit palpable and overriding errors of fact by failing to consider or give effect to alleged admissions by H that he personally would be responsible for half of 863 Inc.'s debt. Trial judge found that both K and H understood that by pro- ceeding as shareholders in cor- poration, they were limiting their personal liability; and that totality of agreement between sharehold- ers was contained in minutes of meetings, which did not contain any suggestion that either party agreed to be personally liable for all of corporation's debts and li- abilities. Ample evidence sup- ported trial judge's key findings. There was no palpable and over- riding error. Koubi v. Hascalovici (2016), 2016 CarswellOnt 18049, 2016 ONCA 867, G.R. Strathy C.J.O., G. Pardu J.A., and David Brown J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 12098, 2015 ONSC 4132, R.E. Charney J. (Ont. S.C.J.). Contracts FRANCHISING CONTRACTS Statutory rights and obligations Franchisee was entitled to rescind contracts with franchisor Disclosure. Defendant franchi- sor, business recruitment com- pany, acted as service provider to recruitment industry. Franchisor and plaintiff franchisee executed certification and training agree- ment, which called for payment of $29,500 plus HST, and brokerage license agreement in September 2011. Franchisor sent franchi- see notice of default in July 2012. Acknowledgement and continu- ation agreement was terminated in February 2013. Franchisee brought action against franchi- sor for damages under Arthur Wishart Act (Franchise Disclo- sure), 2000. Both parties brought motions for summary judgment. Franchisee's motion was granted and she was awarded $96,000. Franchisor appealed. Appeal al- lowed in part. Motion judge did not err in concluding that parties' relationship was that of franchi- sor and franchisee, as contended by plaintiff, and not of licensor and licensee, as contended by de- fendant. As such, franchisee was entitled to protection of Act and was entitled to rescind her con- tracts with franchisor on basis that it did not provide statutorily mandated disclosure statement. CASELAW

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