Law Times

Law timeS • September 3, 2012 Commission approved claim of respondent for unemploy- ment benefits. Commission found respondent voluntarily leſt employment for just cause as respondent had no reason- able alternative having regard to circumstances. Board dismissed applicant' gued board denied procedural fairness by refusing to receive into evidence e-mails tendered on behalf of employer. Appli- cation for judicial review was dismissed. Board' s appeal. Applicant ar- cerning harassment were based on manager' s findings con- dence and findings were consis- tent with large part of claimant' testimony. E-mails were largely irrelevant to issues at stake. De- cision to exclude e-mails did not deny applicant fair hearing and did not otherwise constitute breach of procedural fairness. United Wings Enterprise Inc. v. Qiu (May 14, 2012, F.C.A., Na- don, Dawson and Mainville JJ.A., File No. A-469-11) 214 A.C.W.S. (3d) 853 (7 pp.). s own viva voce evi- s FEDERAL COURT Motion by defendants appealing order of prothonotary denying leave to defendants to amend their respective fresh as amend- ed statement(s) of defence. Plaintiffs were issued patent in relation to Lovastatin, pharma- ceutical drug used to treat cho- lesterol. Defendant received no- tice of compliance ("NOC") for Apo-lovastatin. Plaintiffs com- menced patent infringement action. On consent of parties, action was bifurcated. Defen- dants sought, and were denied, leave to amend their statement of defence in respect of dam- ages trial. Defendants proposed to plead that defendants could have employed non-infringing alternative process for produc- ing Apo-Lovastatin, and there- fore any damages that plaintiffs experienced by defendants actually employing infringing process for producing Lovas- tatin were not really damages at all by virtue of availability of non-infringing process. Motion granted. Pleading did not con- tain radical defect. Defendant advanced arguable and impor- tant point of law. It could not be said that answer was so forlorn that it was plain and obvious that it could not succeed. Merck & Co. v. Apotex Inc. (Apr. 18, 2012, F.C., Rennie J., File No. T-1272-97) 214 A.C.W.S. (3d) 761 (18 pp.). Defendant advanced arguable and important point of law Civil Procedure PLEADINGS Crown Plaintiff brought class proceed- ing on behalf of former mem- Offset represented substantial limi- tation to Canadian Forces mem- ber's long-term disability coverage ARMED FORCES bers of Canadian Forces. Issue concerned legality of Federal Government' ing long-term disability ("LTD") benefits payable to disabled Ca- nadian Forces ("CF") members under CF Service Income Se- curity Insurance Plan ("SISIP") Policy by monthly amounts payable to those members un- der Pension Act (Can.). Prelimi- nary question of law posed was whether Act pension payments were "total monthly income benefits" as described in s. 24(a) (iv) of part III(B) of SISIP Policy. Article 24 of SISIP Policy pro- vides that "The monthly benefit payable at Section 23 shall be reduced by the sum of . . . the total monthly income benefits payable to the member under the Pension Act". Class argued that Act payments not caught by benefit offset provision since not income replacement. Canada argued that contracting parties intended to offset benefits and, in context of entire scheme, intention manifest in special- ized language used. Preliminary question of law determined in favour of plaintiff. SISIP is in- come replacement scheme in- tended to replace percentage of CF member' s policy of reduc- inability to work. Act provides pensions and other benefits to CF members in recognition of Canada' s lost income due to sate CF members disabled or killed in service of Canadians. Act disability benefit payable regardless of whether disabled CF member continues in active service. Monthly benefit pay- able not income replacement but rather compensation for loss of amenities of life and personal limitations and sacrifices that arise s obligation to compen- Class members not strangers to SISIP Policy. They were benefi- ciaries to insurance policy and, as such, had legal interest suf- ficient to have policy enforced and to argue for any interpreta- tion open to contracting parties. CF members have always con- tributed to cost of SISIP Policy which expressly recognizes their status as insureds. In interpret- ing insurance contracts, court should look for meaning on basis of reasonable expectations of parties although doctrine of contra proferentem applies. "Income" unnecessary if inten- tion to provide for deduction of Act disability benefits and could not be ignored. Viewed con- textually, parties did not intend SISIP offset provision to apply to Act disability benefits. This would wholly deprive disabled veterans of important financial award intended to compensate for disabling injuries suffered in service of Canadians. Issue must also be resolved against Canada on basis of contra proferentem. Offset represented substantial limitation to CF member' from disabling injuries. coverage and, in absence of clear language that member' s LTD ability pension could be deduct- ed, ambiguity must be resolved in favour of plaintiff. Manuge v. Canada (May 1, 2012, s Act dis- CASELAW F.C., Barnes J., File No. T-463- 07) 214 A.C.W.S. (3d) 952 (31 pp.). Employment Application by employer for ju- dicial review of decision of ad- judicator finding that employee had been unjustly dismissed by employer, and ordering employ- er to reinstate employee and pay him sixteen months' back pay as compensation, and imposing four-month suspension. Appli- cation granted. Decision of adju- dicator was set aside. Adjudica- tor' relevance of timeline and sequence of events leading to dismissal WRONGFUL DISMISSAL Adjudicator failed to consider was unreasonable. Adjudicator failed to consider several rel- evant factors in reaching his de- termination that employee' s finding of unjust dismissal missal was unjust. Adjudicator failed to consider relevance of timeline and sequence of events leading up to dismissal. It was clear from employee' s dis- that corrective action taken by employer failed to have desired effect, as employee showed little or no understanding that his be- haviour was unacceptable, and in fact continued to engage in inappropriate conduct in similar vein to that which earned him initial warning. Adjudicator was under incorrect belief that ac- tual harm was required in order for employee' s behaviour been justified. By not taking into account relevant factors, adjudi- cator did not have regard to all relevant considerations in mak- ing his decision on reinstate- ment. Bank of Montreal v. Payne (Apr. 13, 2012, F.C., Rennie J., File No. T-850-11) 214 A.C.W.S. (3d) 848 (21 pp.). s dismissal to have Immigration Applicant leſt country of origin and went to United States for eight years and did not claim protection. Applicant was de- nied refugee status. RPD found applicant' Decision lacked logical frame work which made it difficult and confusing to assess REFUGEE STATUS consistent with stated fear. RPD found applicant did not show country of origin could not protect applicant if applicant returned. RPD found applicant had no nexus to convention ground. Application for judicial review was allowed. It was diffi- cult to determine true grounds of decision. It was not clear from decision whether there was find- ing applicant lacked subjective fear. RPD did not say state pro- tection finding was stand-alone determinative ground for refus- ing claim. Decision lacked logi- cal framework, which made it difficult and confusing to assess. Decision was not clear on ex- tent to which negative credibil- ity findings and past attempts to elicit protection informed state protection analysis. There were s actions were not www.lawtimesnews.com two basic factual error RPD made in decision that made decision unreasonable. Lack of clarity in grounds, procedural fairness issues and unreason- able findings rendered decision unsafe. Andoni v. Canada (Minister of Citizenship and Immigration) (May 3, 2012, F.C., Russell J., File No. IMM-5953-11) 214 A.C.W.S. (3d) 934 (40 pp.). Industrial and Intellectual Property Applicant started using name in 1997. Applicant changed name in 2000 and used name and cor- responding logo continuously since 2000. Respondent moved to Canadian market and found no trademarks that might con- flict with respondent' of inherent distinctiveness of trademarks Confusion likely given lack TRADEMARKS marks. Respondent's applica- s proposed tions for trademarks were adver- tised. In 2005 applicant applied to register own mark. Trademark examiner concluded applicant' application was subsequent to respondent' s proposed trademark would be confusing when compared to respondent' s and applicant's istrations were invalid because it was not person entitled to reg- ister them. Applicant showed it used trademark during relevant timeframe. Applicant proved use of trademark continuously from 1997 onward. Change to applicant' s. Respondent's reg- variant on former name. There was strong similarity between parties' trademarks and some evidence of actual confusion. Confusion was likely given lack of inherent distinctiveness of trademarks, short length of time they co-existed, identical nature of trade and services, and close resemblance of marks. Consum- ers would likely believe wares and services associated with marks came from same source. Applicant did not acquiesce in respondent' s name was minor Precision Door & Gate Service Ltd. v. Precision Holdings of Bre- vard, Inc. (Apr. 30, 2012, F.C., O'Reilly J., File No. T-2168-10) 214 A.C.W.S. (3d) 943 (18 pp.). s registration. Parole Inmate, incarcerated aſter he pleaded guilty to charge of mur- der in second degree, applied for judicial review of appeal divi- sion of parole board' One would think plan was to have inmate die of old age before decision made INMATES' RIGHTS to uphold decision of parole board denying full parole, or day parole in alternative. Inmate' s decision grievance of decision moving him to medium security insti- tution from minimum security one on basis of allegations that he and another inmate had sexu- ally assaulted two other inmates, had not yet been heard. Judi- cial s review granted, decisions PAGE 17 quashed, matter referred back to another panel of board for reconsideration in accordance court' court could not say with any confidence, that without sexual assault allegations result would have been same. Board made no effort to sort out allegations against inmate, apparently being content to have matter work its way through grievance process, and made no effort whatsoever to check out his alibi. If one did not know better, one would think plan was to have inmate die of old age before decision was made. Board had no right to exclude relevant evidence. Steele v. Canada (Attorney Gen- eral) (Apr. 2, 2012, F.C., Har- rington J., File No. T-380-11) 100 W.C.B. (2d) 913 (9 pp.). s reasons. Given record, ONTARIO CIVIL CASES Air Law This was appeal from applica- tion judge' and detain aircraft to recover amounts owed Authorities entitled to seize AIRCRAFT seizure and detention orders. Corporation collapsed in March 2010 and leſt $1.5 million in unpaid airport charges and air navigation services. Respondent authorities provided those ser- vices. Appellant lessors owned aircraſt. Receivership order was granted. Corporation' s decision granting tor certificate and aircraſt main- tenance organization licenses were suspended. Respondents GTAA and ONC sought order under s. 9 of Airport Transfer (Miscellaneous Matters) Act (Can.) s air opera- spondent NAV sought order requested similar relief pursu- ant to s. 56 of Civil Air Naviga- tion Services Commercializa- tion Act (Can.) ("ATMMA"), and re- for aircraſt seizure and deten- tion order. Application judge granted applications and found that respondents were entitled to seize and detain aircraſt to re- cover amounts owed to them by corporation without regard to property interests of appellants. Appeal dismissed. Respondents established that corporation owed GTAA and ONC amounts related to use of airport it oper- ated for purposes of s. 9 of AT- MMA and that corporation owed NAV charges related to air navigation services for purposes of s. 56 of CANSCA. Respon- dents established that corpora- tion owned or operated aircraſt subject to seizure and detention order. Authorities were entitled to seize and detain aircraſt to recover amounts owed to them by collapsed airlines without regard to property interests of aircraſt owners. Lessors did not fall within exception, as they had not completed repossession. Suspension of air operator cer- tificate or aircraſt maintenance organization licenses did not af- fect airline' ("CANSCA"), s status as "registered

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