Law Times

Page 14 September 25, 2017 • Law timeS www.lawtimesnews.com CASELAW daughters were citizens of Unit- ed States. Senior immigration of- ficer denied applicants' applica- tion for permanent residence on humanitarian and compassion- ate grounds. Applicants applied for judicial review. Application granted. Issue was not degree to which applicants had become established, but whether degree of establishment they achieved was such that if required to leave Canada they would experience unusual, undeserved or dispro- portionate hardship other than hardship normally associated with departure. When officer said that established was what would be expected she meant that applicants' circumstances were ordinary and there was nothing that would meet hard- ship test, and that aspect of de- cision was reasonable. However, officer's analysis of best interests of minor daughter was unrea- sonable because it was unreal- istic. Officer had no basis for speculation that daughter spoke Albanian, and it was unreason- able to find daughter to be resil- ient and able to cope with move from Canada to Albania based on prior move from Michigan to Ontario, as moves were not com- parable. It was not reasonable for officer to conclude that Cana- dian teenagers would take time necessary to maintain friend- ships with daughter when they were not likely to see her again. It was unreasonable for officer to conclude that best interests of daughter were only impacted in negative manner if her well-be- ing would be in jeopardy in Al- bania or if she faced impossible feat adapting to life in Albania. Humanitarian and compassion- ate application was to be recon- sidered by another officer. Shtjef hilaj v. Canada (Minis- ter of Citizenship and Immigra- tion) (2017), 2017 CarswellNat 987, 2017 FC 340, Sandra J. Simpson J. (F.C.). Not sufficient to show that living in Canada is more desirable for children Best interests of child. Main ap- plicant and daughter were citi- zens of St. Vincent who made unsuccessful claim for refugee protection in Canada. Main ap- plicant had older son who re- sided in St. Vincent with mater- nal grandmother, and younger son who was born in Canada. Younger son's father applied to sponsor main applicant but he withdrew application when rela- tionship ended. Immigration of- ficer refused applicants' request for permanent residence on hu- manitarian and compassionate grounds. Applicants applied for judicial review. Application dis- missed. Applicable standard of review was reasonableness. Offi- cer did not err in analysis of best interests of children. Officer was alert, alive and sensitive to best interests of children, gave them significant weight, examined them with care and attention in light of all of evidence, and took into account context of chil- dren's personal circumstances. All of factors raised in applicants' humanitarian and compassion- ate submissions were captured in officer's reasons. Officer did not dismiss potential hardship daughter would face upon return to St. Vincent. Officer addressed fact that daughter would no longer have access to Canadian education, which was preferable, but that living in Canada was more desirable for children was not sufficient, in and of itself, to grant humanitarian and com- passionate application. Although officer addressed gender based discrimination and domestic violence concerns they should have also been considered within best interests of children analy- sis, but outcome would have been same. Officer considered that younger son had medical is- sues and had surgery, but found that there was lack of evidence to show that surgery was not suc- cessful and that he would likely need further treatment for con- dition that would not be avail- able in St. Vincent, and officer did not err in so finding. Officer devoted significant portion of decision to best interests of chil- dren, considered interests of each child separately and with view to submissions made by applicants in context of children's particu- lar circumstances, referred to most, if not all, of documentary evidence, and consulted country condition documentation. Offi- cer's reasons demonstrated that best interests of children were important factor in decision, and best interests of children analysis was reasonable. Garraway v. Canada (Minis- ter of Immigration, Refugees, and Citizenship) (2017), 2017 Car- swellNat 793, 2017 FC 286, Cec- ily Y. Strickland J. (F.C.). Intellectual Property COPYRIGHT Material in which copyright may subsist Circumventing technological protection measures constituting copyright infringement Applicant was video game manufacturer N. N claimed that respondent company G had circumvented its technological protection measures (TPM's). N claimed that these actions al- lowed users to play unlicensed copies of N's games on G's devic- es. N's games were copyrighted either in Canada or United States. N brought action for damages for copyright infringement, and for anti-circumvention. Action allowed. G admitted infringe- ment of data, which was one of N's 3 claims. Unauthorized ma- terial was present on devices sold by G. Parliament specifically contemplated actions similar to that of G, in drafting amended legislation. Parliament intended legislation to apply to all techno- logical areas, including games. Fact that G only used partial rep- lication of TPM was not defence to action. Owners of N's systems already had access to operating system and authorized games. G could not rely on already avail- able access to justify its use of N's TPM's. G had clearly trafficked in circumvention devices, mak- ing these widely available online and in their store. G profited off work of N in creating and mar- keting games and systems, over many years. Nintendo of America Inc. v. King (2017), 2017 CarswellNat 650, 2017 FC 246, Douglas R. Campbell J. (F.C.). PATENTS Transfer of interest Liability period started on date plaintiff would have obtained Notice of Compliance (NOC) After dismissal of defendant pharmaceutical company's pro- hibition application and of its action for patent infringement, plaintiff brought action for dam- ages f lowing from time its gener- ic version of drug olanzapine was kept off market. Hearing held on specified questions, includ- ing dates of liability period, size and shares of olanzapine market, and other issues as to amount of plaintiff 's losses, relevant to calculation of damages. Liabil- ity period started on date certi- fied by Minister as day on which plaintiff would have obtained its Notice of Compliance (NOC) if defendant had not initiated pro- ceedings under Regulations. Evi- dence did not show that plaintiff abandoned its claim to damages in this proceeding by its response to costs request in defendant's first prohibition application which was ended by plaintiff 's withdrawal of first Notice of Al- legation (NOA) in favour of serv- ing new one. Plaintiff was simply pointing out that consequences of withdrawal of first NOA was relinquishment of claim to dam- ages within that first proceed- ing and was not agreeing that it would not seek damages in sub- sequent proceedings. Plaintiff would have been able to put its product on market upon receiv- ing its NOC. Size of overall olan- zapine market in but-for world would have been same as it was in real world. Some real-world events, including impact of leg- islation generally setting generic prices as 50 per cent of brand prices, did not ref lect situation in but-for world during liability period. In contrast to real-world delays arising from Ontario reg- ulatory environment, plaintiff would have obtained provincial listings promptly. There was no basis for finding that defendant would have discontinued its real-world prohibition proceed- ings against other generic com- panies in but-for world so there was no evidence that any other generic company would have come to market during liability period. Plaintiff was in position to supply entire generic market during liability period. It would overcompensate plaintiff to in- cluded pipefill amount, as this represented differential between retail sales and quantity of pro- duce leaving factory, which re- lated sales that would have been made outside liability period. Plaintiff 's rate of "trade-spend", consisting of payments to pur- chasers in forms such as rebates or incentives, would have been relatively low rate of just under 30 per cent as it would have been sole generic on market during li- ability period. Pre-judgment in- terest rate of 4.5 per cent sought by plaintiff was too high, and variable rate over relevant period would be more appropriate. Eli Lilly Canada Inc. v. Teva Canada Ltd. (2017), 2017 Car- swellNat 1938, 2017 FC 88, James W. O'Reilly J. (F.C.). TRADEMARKS Registrability Registration of trademark refused in absence of evidence describing use of promotion of mark Company owned Schwan's Mark and was subsidiary of cor- poration incorporated in US. Defendant, Canadian national retail grocery store, opposed reg- istration of Schwan's Mark. De- fendant was owner of trademark for work EDWARDS (Sobey's Mark). Registrar refused com- pany's application for registra- tion of its trademark. Company did not provide affidavit which described its use of promotion of Schwan's Mark; this allowed registrar to conclude there was no evidence of use of Mark by company in Canada or that it acquired any distinctiveness in Canada. Although goods were intrinsically different, evidence showed defendant's bakery products were related to com- pany's wares, which included coffee because they could be used together. Company ap- pealed. Appeal dismissed. Al- though affidavit describing sales in United States and sale of fro- zen pies in Canada from 2010 to 2014 had potential to materi- ally affect finding that marks were confusing, evidence about US and Canadian sales was not material. Registrar would not have relied on this new evi- dence and lack of complaints from consumers to conclude that there was no confusion. Two to three years co-existence of company's similar US mark and with defendant's mark was not probative because period of coexistence was relatively short. Member would have found evi- dence about use and promotion of company's mark in Canada weak and somewhat unreliable: products sold in Canada were misdescribed in affidavit; there was no documentary evidence to support alleged "hundreds of thousands" in sales; and there was no documentary evidence to support alleged "millions" in promotion. Evidence about lack of retail consumer and wholesale purchaser confusion in Canada over relatively short period would not have altered decision. Fact that company's mark was used for frozen goods that would be sold in freezer sec- tion of supermarket would not have materially affected decision because, member acknowledged that coffee and company's goods might not be sold in same stores or in same sections of stores. It was open to Registrar to afford relatively more weight to degree of resemblance; decision was reasonable. Schwan's IP, LLC v. Sobeys West Inc. (2017), 2017 Carswell- Nat 338, 2017 FC 38, Sandra J. Simpson J. (F.C.); application for judicial review refused (2015), 2015 CarswellNat 6422, 2015 CarswellNat 6423, 2015 TMOB 197, 2015 COMC 197, Natalie de Paulsen Member (T.M. Opp. Bd.). Tax Court of Canada Tax INCOME TAX Foreign income U.S. IRA was taxable as " foreign retirement arrangement" Taxpayer was Canadian resident who was dual citizen of Cana- da and United States (US). On death of taxpayer's American mother, she received distribu- tion of $21,740 from mother's in- dividual retirement account (US IRA) that named her as benefi- ciary. Distribution was taxed in United States. Taxpayer did not include amount of distribution in Canadian income tax return. Minister reassessed taxpayer un- der Income Tax Act, including amount in income and allowing foreign tax credit of $3,296.85 relating to U.S. income taxes paid. Taxpayer appealed. Appeal dismissed. Act set out specific scheme for taxation of amounts from arrangements such as US IRA, and taxpayer's argument of alternate taxing mechanism was not persuasive. U.S. IRA was taxable under s. 56(1)(a)(i) (C.1) of Act as "foreign retire- ment arrangement" as it met specified conditions of US Inter- nal Revenue Code of being cus- todial account held by approved person and constituted indi- vidual retirement account for exclusive benefit of individual or beneficiaries. Taxpayer's sug- gestion of alternative methods of recording income, treating US IRA as investment portfolio for which capital gains would be included upon disposition of shares or finding that deemed disposition occurred upon her inheritance, were not persuasive. As s. 56(1)(a)(i)(C.1) of Act dealt specifically with situation at bar, amount received by taxpayer was taxable under that provi- sion. Taxpayer's argument that s. 248(28) of Act applied to bar double taxation was premised on view that s. 70(5) of Act also applied. As taxpayer's mother was not resident of Canada, deemed disposition pursuant to s. 70(5) of Act did not apply and so there was no double taxation. Taxpayer was correctly assessed by Minister. McKenzie v. R. (2017), 2017 CarswellNat 1311, 2017 TCC 56, Johanne D'Auray J. (T.C.C. [In- formal Procedure]).

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