Law Times

Law Times • February 6, 2017 Page 13 www.lawtimesnews.com CASELAW Federal Court of Appeal Civil Practice and Procedure COSTS Security for costs Defendant was prima facie entitled to security for costs Plaintiff was serving life sentence for murde r and, in recent years, commenced 17 actions, applica- tions and appeals against defen- dant Canada in various courts. These appeals arose from plain- tiff 's action for damages and two applications for judicial review of grievance decisions. Plaintiff conceded he was indebted to defendant for unpaid costs, now totaling over $31,000. In light of outstanding costs and R. 416(1) (f ) of Federal Court Rules, de- fendant was prima facie entitled to security for costs, and motions judge found accordingly. R. 417 provided poverty should not be bar to litigation, and security for costs should be denied when it would preclude impecunious plaintiff from advancing other- wise meritorious claim. Motions judge found plaintiff did not meet threshold of impecuniosity as he was able to pay court fees to commence numerous pro- ceedings, and able to pay those litigation disbursements. Plain- tiff brought appeal from three orders for security for costs made by motions judge. Appeal dis- missed. Plaintiff filed financial documentation that showed he had limited financial means, and motions judge's inference was questionable, as plaintiff 's ability to pay court fees and disburse- ments was not indicative of abil- ity to pay much larger amount of costs. Motions judge made deci- sion on basis of one factor rather than assessment of plaintiff 's overall financial situation. Plain- tiff also had to establish imprac- ticality of borrowing from third party with robust particularity and failed to discharge his onus. Plaintiff 's family members had helped in in past and affidavits filed were short on particulars to explain change in circumstanc- es. There was no direct evidence plaintiff 's wife was ill and unable to work, medical evidence was not up to date, and there was no information on her financial re- sources or assets. Mapara v. Canada (Attor- ney General) (2016), 2016 Car- swellNat 6498, 2016 FCA 305, J.D. Denis Pelletier J.A., A.F. Scott J.A., and Yves de Montigny J.A. (F.C.A.). Company demonstrated it was impecunious In action for patent infringement defendant brought motion for order requiring plaintiff com- pany to post security for costs. Judge found that company and individual plaintiff, majority shareholder of company, did not have assets that could be used to post security for costs, but that minority shareholder was em- ployed, had some assets and was able to post security for costs. Company was ordered to post security for costs of $195,785.70. Plaintiffs appealed. Appeal al- lowed. Company did not have sufficient assets in Canada avail- able to pay defendant's costs if ordered to do so. Company, on its own, was impecunious, and majority shareholder was not able to provide financial assis- tance to company. In deciding whether company was impecu- nious it was appropriate to dis- tinguish between shareholders who were manipulating com- pany and those who were not. If company was controlled by one person or group of persons, then it was appropriate to consider fi- nancial resources of that person or group in determining wheth- er company was impecunious. If person was minority share- holder and was not part of group controlling company, then circumstances related to that shareholder should be examined to consider whether it was ap- propriate to take into account his or her financial resources in determining whether company was impecunious. Important factor was percentage of shares held by person, and smaller per- centage of shares held, less likely it was that financial resources should be considered in deter- mining whether company was impecunious. Minority share- holder here owned 10 percent of shares, she never had been in- volved in business and was un- willing to post security for costs. Judge erred in law in consider- ing whether minority share- holder could be sole source of amount that company would be required to post as security for costs. Company demonstrated it was impecunious for purpose of Rule 417 of Federal Court Rules. Swist v. Meg Energy Corp. (2016), 2016 CarswellNat 6184, 2016 FCA 283, Wyman W. Webb J.A., D.G. Near J.A., and Donald J. Rennie J.A. (F.C.A.). Intellectual Property TRADEMARKS Opposition Board's decision fell within range of reasonable outcomes Applicant was Quebec-based producer of apple-based alcohol- ic and non-alcoholic beverages and foods. Opponents were sub- sidiaries of U.S.-based producer and distributor of wines. Appli- cant applied to register word and design mark DOMAINE PIN- NACLE & DESIGN in relation to sale of its beverages and other apple products. Opponents' statement of opposition, alleging confusion with their "Pinnacles" mark registered in relation with sale of wine, was rejected by Trademarks Opposition Board. Opponent's appeal was allowed, on basis that Board erred in not considering potential uses of their registered mark. Appli- cant appealed. Appeal allowed. Board's decision fell within range of reasonable outcomes open to it on facts and law. Ap- peal judge effectively reviewed Board's interpretation and ap- plication of governing precedent on correctness standard. Appeal judge effectively carried out de novo review even though it had rejected new evidence proposed by opponents. Board cited ap- plicable precedent at beginning of its confusion analysis and no more was required since it had applied that precedent reason- ably. Board's finding on likeli- hood of confusion would re- main reasonable outcome even if, as appeal judge suggested was possible, opponents chose to use same font as applicant. Combi- nation of word and design in ap- plicant's mark were sufficiently distinctive in circumstances. Domaines Pinnacle Inc. v. Constellation Brands Inc. (2016), 2016 CarswellNat 6499, 2016 FCA 302, Johanne Trudel J.A., Boivin J.A., and Rennie J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 4408, 2015 Car- swellNat 8528, 2015 FC 1083, 2015 CF 1083, Jocelyne Gagné J. (F.C.). Public Law SOCIAL PROGRAMS Employment insurance Commission unreasonably applied provision of Canadian Human Rights Act Z and her spouse paid EI pre- miums for many years. Z gave birth to twins in July 2009. Z and her spouse each requested 35 weeks of EI parental ben- efits. Z's request was approved and EI Commission denied Z's request on basis that her spouse had already received maximum parental benefits under Employ- ment Insurance Act, which al- lows for one set of parental ben- efits per pregnancy. Z appealed decision to Board of Referees and then to Umpire. Z's appeal to Umpire was stayed pending outcome in other case in which father of twins had appealed de- nial of his request for second set of EI parental benefits additional to those received by his spouse. In other case, Federal Court of Appeal found that Act provided 35 weeks of parental benefits per single pregnancy or adoption, not per child, and that EI paren- tal benefits scheme was not dis- criminatory on basis of family/ parental status and therefore did not violate s. 15(1) of Canadian Charter of Rights and Freedoms. Supreme Court of Canada de- nied leave to appeal for other case. Social Security Tribunal, Appeal Division (SST – AD) dismissed all appeals including that of Z. Z filed complaint with Canadian Human Rights Com- mission and Commission ulti- mately decided not to deal with her complaint under s. 41(1) of Canadian Human Rights Act (CHRA) Z's application for ju- dicial review of Commission's decision not to deal with her hu- man rights complaint was un- successful. Z appealed. Appeal allowed. Standard of review was reasonableness. Commission unreasonably applied s. 41(1) (d) of CHRA to Z's complaint. Z did not raise any allegations of discrimination under Char- ter or CHRA to which SST-AD could have applied other case. Z was not attempting to re-litigate issue on which she had already received final decision. Com- mission based its decision not to deal with Z's complaint solely on vexatiousness which raised particular legal issues, specifi- 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 WestlawNext Canada. To subscribe, please access carswell.com or 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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