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. COURT OF APPEAL FEDERAL COMMISSION/TRIBUNAL Human Rights Legislation HUMAN RIGHTS Appeal by employee from dis- missal of application for judicial review of decision of Canadian Human Rights Commission not to deal with complaint. Commis- sion found that employee had en- tered into settlement agreement with former employer which included agreement to withdraw complaint. Commission also found no evidence to support allegation that employee signed agreement under duress, fear and anguish, noting that she was rep- resented by counsel throughout negotiations. Appeal dismissed. Application judge identified ap- propriate standards of review as being correctness on questions of procedural fairness and rea- sonableness for substance of de- cision. Judge applied standards correctly. Employee incorrect that there was no information before commission to contradict asser- tions of duress, fear and anguish. Judge did not ignore those allega- tions or claim that commission investigator was biased. E-mail from investigator to employer fell far short of establishing bias. No palpable and overriding error in judge' No error in appreciation of relevance of settlement agreement to reasonableness of decision error in appreciation of relevance of settlement agreement to rea- sonableness of commission' s assessment of evidence. No sion. No principled basis for em- ployee to argue that investigative report must be more thorough where complaint dismissed un- der s. 41 rather than under s. 44. Open to commission to find that complaint "trivial, frivolous, vexa- tious or in bad faith" as employee s deci- sought to litigate settled issue. Exeter v. Canada (Attorney Gen- eral) (Apr. 20, 2012, F.C.A., Shar- low, Dawson and Stratas JJ.A., File No. A-84-11) Decision at 198 A.C.W.S. (3d) 793 was affirmed. 214 A.C.W.S. (3d) 532 (13 pp.). Industrial and Intellectual Property Appeal by respondent from deci- sion granting application under s. 6 of Patented Medicines (No- tice of Compliance) Regulations (Can.), for prohibition order. Or- der prohibited issuance of Notice of Compliance to respondent to sell its version of anastrozole in Canada until aſter expiry of pat- ent. Parties disputed interpreta- tion of sentence in patent specifi- cation "It is a particular object of the present invention to provide aromatase inhibitory compounds with fewer undesirable side ef- fects than [AG]". Judge agreed with applicant that "object of the invention" refers to forward- looking or aspirational aim of in- vention and was not promise that anastrozole had achieved goal by date of filing. Judge concluded that respondent' Undue weight not given to dictionary definition of "object" PATENTS patent was invalid for lack of utility was not justified. Appeal dismissed. Application judge did not err in construction of patent' promise. Undue weight not given to dictionary definition of "object" Judge relied on dictionary defini- tions and synonyms to confirm that in its ordinary usage, "object" capable of bearing meaning he assigned to it based on other con- siderations. Examination of pat- ent as whole supported conclu- sion that, unlike express claims of patent, object clause contained no more than forward-looking aim of invention. Fact that side-effects not mentioned elsewhere in pat- ent was telling. Fact that phar- maceutical industry was seeking s . s allegation that These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. solution to particular problem would not lead POSITA to nec- essarily think "particular object" was that anastrozole solved one of most pressing research problems of the day. Judge did not err in preferring evidence of expert who testified that object clause set out long-term aim of producing few- er side effects. Meaning of expert' alleged concession far from clear. Judge' not internally incoherent. Astrazeneca Canada, Inc. v. Mylan Pharmaceuticals ULC (Apr. 11, 2012, F.C.A., Evans, Sharlow and Dawson JJ.A., File No. A-344-11) Decision at 205 A.C.W.S. (3d) 1065 was affirmed. 214 A.C.W.S. (3d) 588 (17 pp.). s reasons, read in entirety, FEDERAL COURT Immigration Reasonable to conclude false document constituted CONSULTANTS Applicant was determined to be inadmissible because of misrep- resentation of material fact in application for permanent resi- dence. Immigration consultant included International English Language Testing System test result that turned out to be false. Applicant claimed applicant was unaware of false document. Application for judicial review was dismissed. False document constituted misrepresentation. It was reasonable for counsellor to conclude false document was intended to mislead authorities to believe it to be authentic test result. It was reasonable to con- clude that false document consti- tuted material misrepresentation. Applicant could be inadmissible under s. 40(1)(a) of Immigra- tion and Refugee Protection Act (Can.). There could be no subject intent or knowledge requirement to s. 40 because it would be con- material misrepresentation s trary to broad interpretation that wording and purpose of section required. Court declined to cer- tify question. Goudarzi v. Canada (Minister of Citizenship and Immigration) (Apr. 13, 2012, F.C., Tremblay- Lamer J., File No. IMM-2377-11) 214 A.C.W.S. (3d) 536 (22 pp.). COURT OF CANADA SUPREME LEGISLATIVE AUTHORITY Stevedoring not itself Constitutional Law DISTRIBUTION OF Appellant, heavy equipment rental company, rented heavy equipment and engaged in intra- provincial road transportation. Some of its cranes used for ste- vedoring, an activity represent- ing approximately 14% of overall revenue and 20% of employees' salaries. Stevedoring employees fully integrated into workforce. All appellant' transportation activity that crosses provincial boundaries place within Quebec. Appellant sought declaration from Quebec' Commission de la sante et de la securite du travail ("CSST") that stevedoring activities fell under federal government' s activities took s risdiction. CSST's conclusion that s shipping ju- activities came under provincial jurisdiction upheld by Commis- sion de lesions professionnelles. Superior Court overturned that decision but Court of Appeal al- lowed appeal, agreeing that pro- vincial regulation applied. Appeal to Supreme Court of Canada dismissed. Legislation respect- ing labour relations presump- tively provincial. However, fed- eral government has jurisdiction to regulate employment when employment relates to work, undertaking, or business within legislative authority of Parlia- ment or when it is integral part of federally regulated undertaking, referred to as derivative jurisdic- tion. Determination made by assessing work' tional nature. Section 91(10) of Constitution Act, 1867, confers exclusive legislative jurisdiction to Parliament over navigation and shipping. This jurisdiction not ab- solute, and must be read in light of s. 92(10) which divides legisla- tive authority over transportation and communication works and undertakings based on territorial scope of activities. Stevedoring not itself transportation activity that crosses provincial boundar- ies and only subject s essential opera- labour regulation if integral federal undertaking in way that justifies imposing exceptional federal jurisdiction. Federal la- bour relation may be justified when services provided to federal undertaking form exclusive or principal part of related work' to federal to tivities or when services provided to federal undertaking performed by employees who form func- tionally discrete unit. Appellant' s ac- stevedoring employees do not form discrete unit. Appellant de- voted majority of efforts to non- shipping activities. While some shipping companies appellant serviced operated across provin- cial boundaries, appellant' tial operational nature local and stevedoring activities, integrated with overall operations, formed relatively minor part of appellant' s essen- overall operation. Nor was there evidence about whether appel- lant' s performed stevedoring activities were integral to federal shipping undertakings. Tessier ltee v. Commission de la sante et de la securite du travail (May 17, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 33935) Decision at 194 A.C.W.S. (3d) 634 was affirmed. 214 A.C.W.S. (3d) 425 (35 pp.). s employees who occasionally s augusT 20, 2012 • Law Times Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

• Cover