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PAGE 16 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 Aboriginal Peoples Appellant complained about voter eligibility and failures to produce proper identification. Appellant complained about nomination and eligibility of individual respondents to stand as candidates. Application for judicial review was dismissed because appellant had adequate and effective avenue of appeal- ing to appeal arbitrator to re- dress returning officer' Returning officer not required to advise appellant that letter not notice of appeal SELF-GOVERNMENT which appellant did not pursue. Appeal was dismissed. Return- ing officer was not under obli- gation to advise appellant that appellant' s ruling of appeal and that appellant had not paid requisite fee. If return- ing officer misinterpreted or misapplied section of Election Code, appeal to appeal arbitra- tor would lie. Orr v. Boucher (Apr. 17, 2012, F.C.A., Pelletier, Gauthier and Stratas JJ.A., File No. A-349-11) 216 A.C.W.S. (3d) 912 (6 pp.). s letter was not notice Appeal by appellants from deci- sion of Federal Court confirm- ing decision by prothonotary refusing to grant appellants' motion for order that appel- lants' judicial review applica- tions be heard together or in the No reason why proceedings could not be heard one after the other Administrative Law JUDICIAL REVIEW heard consecutively, with single book of authorities being filed. Appeal allowed. Decision was set aside. It was ordered that alternative that they be applications for judicial review be heard one aſter other before same judge at time and place to be fixed by judicial administra- tor, and single book of authori- ties being filed for both pro- ceedings. Prothonotary erred in failing to address appellants' alternative submission that proceedings be heard one aſter other before same judge. There was no reason why proceedings could not be heard one aſter other before same judge. No prejudice has been shown to result from separate but succes- sive hearings. Cargill Ltd. v. Canada (Attor- ney General) (June 11, 2012, F.C.A., Noel, Dawson and Stra- tas JJ.A., File No. A-367-11) 216 A.C.W.S. (3d) 816 (7 pp.). Industrial and Intellectual Property evidence with respect to confusion This was appeal Trial judge gave little weight to COPYRIGHT appeal of judgment respecting trade-mark and copyright in- fringement claims. Parties had long history with respect to use of trade-mark MARLBORO. It was sold by predecessor of re- spondents to predecessor of ap- pellants. Since 1930 it had been continuously used in Canada by appellants and predecessors in association with cigarettes. Since late 1950s respondents had made various attempts to reacquire MARLBORO trade- mark in Canada. Respondents launched new product that of- fered cigarettes for sale in pack- age with no brand name. No- name package referred to world famous imported blend and included most popular design elements and tag line associated around world with respondents' Marlboro trade-marks. Product was called ROOFTOP. Appel- lants claimed that respondents breached registered Canadian and cross- These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. trade-mark MARLBORO. Trial judge found that MARLBORO mark was still valid but that re- spondents' design trade-marks were also valid and registration was complete defence to appel- lants' claim of infringement. Trial judge found that appel- lants' packages did not infringe respondents' copyright. Appeal allowed in part; cross-appeal dismissed. Trial judge made no reviewable error in finding that appellants' MARLBORO word-mark was still valid. Trial judge did not make contradic- tory findings. Trial judge did not make palpable and over- riding error in finding that re- spondents did not use word Marlboro in association with no-name package at time of transfer to retailers or that re- tailers were acting on behalf of respondents when they referred to respondents' product as Marlboro. Trial judge' sion that respondents had not used MARLBORO word-mark and could not be held to have infringed ss. 1, 9 or 22 of Trade- marks Act (Can.), was justified. However, s conclu- interpretation and application of test of whether likelihood of confusion existed, which had material impact on conclusion that there was no likelihood of confusion. Trial judge gave little weight to most of evi- dence presented with respect to confusion. Based on proper analysis, there was likelihood of confusion between sources of products if both appellants' MARLBORO and respondents' no-name packages were used in Canada. Marks were used with same wares and in same trade. There was resemblance that could not be ignored. There was evidence that combination of elements on no-name pack- age suggested to some extent association with Marlboro. Trial judge found that number trial judge erred in of consumers referred to re- spondents' no-name product as Marlboro. There was confu- sion. Based on registration, it was assumed that marks were not confusing at time of regis- tration. There was no evidence that situation had changed. Individual ROOFTOP design marks included in latest design were not confusing with word- mark MARLBORO. However, in unique circumstances, reg- istrations invoked by respon- dents did not constitute abso- lute defence to appellants' claim that current combination of el- ements used on no-name pack- age constituted infringement. Respondents' use of ROOFTOP design trade-mark in associa- tion with cigarettes in no-name packages infringed appellants' rights in registered trade-mark MARLBORO pursuant to Act. Trial judge did not apply wrong test or mistaken approach in determining whether appel- lants' packages incorporated substantial part of copyrighted work. Trial judge' that appellants did not take substantial part of respondents' copyrighted work contained no reviewable error. Philip Morris Products S.A. v. Marlboro Canada Ltd. (June 29, 2012, F.C.A., Letourneau, Pel- letier and Gauthier JJ.A., File No. A-463-10) Decision at 195 A.C.W.S. (3d) 237 was reversed in part. 216 A.C.W.S. (3d) 994 (51 pp.). s conclusion FEDERAL COURT Criminal Law Application by applicant for judicial review decision by Minister denying applicant' request to return funds forfeit- PROCEEDS OF CRIME Evidence did not link funds to legitimate source s ed to Crown under provisions of Proceeds of Crime (Money Laundering) and Terrorist Fi- nancing Act (Can.). Applicant was subjected to currency sei- zure when he failed to report CDN $335 and US $9,880 to Canadian Customs officials pri- or to his departure from airport in Toronto en route to Costa Rica, as required by s. 12(1) of Act. Canada Border Services Agency seized funds as suspect- ed proceeds of crime. Applica- tion dismissed. It was reason- ably open to Minister to decline to exercise discretion in favour of applicant. Minister, as matter of policy, concluded that estab- lishment of legitimacy of source of funds was important factor in exercise of discretion, and this was relevant consideration given purposes of legislation. Evidence did not link funds to legitimate source. There was no basis to applicant' submission that Minister's del- effectively s egate exhibited bias. Docherty v. Canada (Minister of Public Safety and Emergency Preparedness) (June 8, 2012, F.C., Phelan J., File No. T-1491- 11) 216 A.C.W.S. (3d) 904 (17 pp.). Employment Application by applicant for judicial review of decision of Public Service Staffing Tribu- nal dismissing applicant' Tribunal justified in weighing evidence as it did PUBLIC SERVICE plaint regarding abuse of au- thority in appointment process for lack of jurisdiction based on Public Service Employment Act (Can.). Application dismissed. Decision of tribunal dismiss- ing complaint did not amount to failure to exercise jurisdic- tion, breach of natural justice or procedural fairness by not pro- viding oral hearing, or unrea- sonableness in determination s com- OctOber 1, 2012 • Law times Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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