Law Times

Law Times • OcTOber 2, 2017 Page 13 www.lawtimesnews.com CASELAW Supreme Court of Canada Remedies INJUNCTIONS Form and operation of order Injunction with worldwide effect was only to way to protect against irreparable harm D Inc. was distributor of E Inc.'s networking devices. After D Inc. allegedly used E Inc.'s trade secrets and conspired with oth- ers to design and manufacture competing product it shipped to customers ordering E Inc.'s products, E Inc. brought action against D Inc. and obtained in- terlocutory injunction freezing D Inc.'s assets and prohibiting D Inc. from using E Inc.'s in- tellectual property. D Inc. left jurisdiction without comply- ing. After E Inc. obtained order prohibiting D Inc. from car- rying on business on Internet, non-party, G Inc., de-indexed D Inc.'s Canadian websites. D Inc. moved content to new pages so customers could access websites through G Inc.'s non-Canadian URLs. E Inc. obtained interim injunction from BC Supreme Court (BCSC) compelling G Inc. to globally de-index D Inc.'s websites. BCSC held that injunc- tion with worldwide effect was only way to protect E Inc. from irreparable harm. BC Court of Appeal (BCCA) dismissed G Inc.'s appeal, finding injunction did not violate principles of co- mity, that there was sufficient basis to uphold finding that G Inc. did business in BC and that BCSC had in personam jurisdic- tion over G Inc., that BCSC had inherent jurisdiction to grant injunction with extra-territorial effect against non-party resident in foreign jurisdiction, and that injunction was only practical way to prevent D Inc. from f lout- ing court's orders. BCCA found that underlying action met Su- preme Court of Canada's RJR- MacDonald test for interlocu- tory injunction. G Inc. appealed. Appeal dismissed. Court with in personam jurisdiction could grant injunction enjoining that person's conduct anywhere in world where it was necessary to ensure injunction's effectiveness. Internet had no borders: its natu- ral habitat was global. Only way to ensure interlocutory injunc- tion attained its objective was to have it apply where G Inc. operat- ed: globally. Injunction restricted to Canada or G Inc.ca would not prevent irreparable harm. Order only required G Inc. to make changes where search engine was controlled, something G Inc. did with ease, so there was no harm to G Inc. on "inconvenience" scale arising from global reach of order. It remained open to G Inc. to have order varied or vacated but G Inc. had not done so. Google Inc. v. Equustek So- lutions Inc. (2017), 2017 Car- swellBC 1727, 2017 CarswellBC 1728, 2017 SCC 34, 2017 CSC 34, McLachlin C.J.C., Abella J., Mol- daver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2015), 2015 CarswellBC 1590, 2015 BCCA 265, Frankel J.A., Groberman J.A., and Harris J.A. (B.C. C.A.). Federal Court of Appeal Tax INCOME TAX Administration and enforcement Interest payable by Minister on returned funds paid pursuant to jeopardy order subsequently set aside Interest. CRA collected $12.75 million from taxpayer pursuant to jeopardy order. Jeopardy or- der was set aside on consent and monies were returned to tax- payer. Minister refused to pay interest on refunded amount on basis that interest was not payable on funds paid as conse- quence of jeopardy order, even if order was subsequently set aside. Federal Court judge dis- missed taxpayer's application for judicial review. Judge held that Minister reasonably inter- preted Income Tax Act as im- posing no obligation to pay in- terest in respect of fund seized under jeopardy order. Taxpayer appealed. Appeal allowed. Dec- laration was made that interest was payable. Minister's deci- sion to interpret s. 164(1.1) of Act such that no interest was payable to taxpayer as provided in s. 164(3) of Act on refunded amount was neither correct nor reasonable. Setting aside jeopardy order meant that s. 164(1.1) of Act should be read as if jeopardy order had never been issued and that no autho- rization had been granted un- der s. 225.2(2) of Act in respect of amount assessed. Since tax- payer had appealed reassess- ments and had applied in writ- ing for refund, other conditions of subsection had been satisfied and interest was payable under s. 164(3) of Act. This interpreta- tion was consistent with con- text and purpose of Act. There would be no loss to government if it paid interest on refunded amount since it would be repaid if portion of refunded amount was ultimately determined to be payable. There would be loss to taxpayer if interest was not paid on refunded amount and he ultimately owed less than re- funded amount. Grenon v. Canada (Na- tional Revenue) (2017), 2017 CarswellNat 3765, 2017 FCA 167, Wyman W. Webb J.A., A.F. Scott J.A., and Mary J.L. Glea- son J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 2161, 2016 FC 604, James W. O'Reilly J. (F.C.). Federal Court Immigration and Citizenship ADMISSION Temporary entry (visitors) Application for Labour Market Impact Assessment refused Director and employer contact of applicant posted job adver- tisements for long-haul truck drivers with one to two years' experience. Director was only able to hire one suitable can- didate. Applicant applied for Labour Market Impact As- sessment. Officer of Employ- ment and Social Development Canada refused application on ground that applicant failed to demonstrate sufficient effort to hire Canadians or need for job. Applicant brought application for judicial review. Application dismissed. Officer did not fore- close possibility of deviating from guidelines or the National Occupation Classification. Of- ficer recognized that applicant could have provided sufficient justification for additional job requirements but failed to do so. Applicant failed to provide evidence of experience require- ment apart from unspecified insurance saving. Officer's deci- sion was reasonable. There was no breach of procedural fair- ness. Applicant was made aware of officer's concerns, and direc- tor had opportunity to address concerns. Sky Blue Transport Ltd. v. Canada (Minister of Employ- ment and Social Development) (2017), 2017 CarswellNat 723, 2017 FC 273, Michael L. Phelan J. (F.C.). Tax Court of Canada Tax GOODS AND SERVICES TAX Administration and enforcement Fee arrangement intended to ensure registrant able to obtain proper representation At hearing of appeal, issues was whether three categories of food products were zero-rated sup- plies for purposes of Excise Tax Act. Court found that only two of three products were zero- rated and matter was referred back to Minister of National Revenue for reconsideration and reassessment on that basis. Subject to final assessment, reg- istrant was entitled to refund of $38,865 plus interest and penal- ties. As part of submissions on costs, parties advised that judg- ment rendered was as favour- able as terms of offer of settle- ment made by registrant on June 3, 2014, was rejected. Reg- istrant's counsel had entered into fee arrangement consisting of variable fixed fee stipulation and stipulation in event that court awarded enhanced costs. Since registrant was entitled to refund of $38,865, resulting variable fixed fee was $19,433 and that amount could be re- duced by up to 90 per cent or to as little as $1,943 if court award- ed enhanced costs. Registrant claimed substantial indemnity costs on basis that it served of- fer of settlement as favourable as judgment rendered, and claimed $90,882, representing 80 per cent of solicitor and cli- ent costs incurred after date of offer. Issue arose as to quantum of costs. Registrant was en- titled to costs in total amount of $95,109 excluding applicable 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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