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Page 14 OctOber 16, 2017 • Law times www.lawtimesnews.com CASELAW motion. Defendant brought mo- tion to declare plaintiff vexatious litigant and prohibit him from continuing this or other actions, or initiating further proceedings without leave. Motion granted. Plaintiff 's claims were repetitive, multiple, and replete with allega- tions that were nonsensical, con- fusing and offensive. Plaintiff had pattern of incessant, abusive, threatening and insulting com- munications to Crown counsel, court and staff, and persisted with this conduct despite warn- ings and court orders. Plaintiff met all hallmarks of vexatious litigant. Plaintiff 's threats im- pacted judicial practice, he re- litigated matters and expressed intention to continue with this abuse of process. Plaintiff 's pleadings were frivolous, incom- prehensible and alleged miscon- duct, corruption and incompe- tency against court and counsel. Previous efforts to curtail plain- tiff 's behaviour were futile and he refused to accept authority of court. S. 7 of Canadian Charter of Rights and Freedoms was not engaged, and order did not bar plaintiff from access to courts. Hunt v. R. (2017), 2017 Car- swellNat 789, 2017 FC 251, Mi- chael L. Phelan J. (F.C.). Immigration and Citizenship EXCLUSION AND REMOVAL Removal from Canada Minister of Public Safety had public duty to render decision on requests for ministerial relief Foreign national (FN) was citi- zen of Iran who was member of Mujahedin-e-Kalq (MEK) from 1979 to 1982. FN came to Cana- da and was found to be Conven- tion refugee in 1994. In 2001, FN was found to be inadmissible due to his past involvement in MEK, which was considered to be ter- rorist entity. In 2007, Minister of Public Safety decided not to grant ministerial relief despite recom- mendation to contrary from immigration counsellor. FN suc- cessfully brought application for judicial review, and redetermina- tion was ordered, but redetermi- nation was never completed. FN brought application for order of mandamus requiring minister to complete redetermination in accordance with agreed-upon schedule. Application granted. Minister had public duty to ren- der decision on requests for min- isterial relief, and such duty was owed to FN because he had made such request. Minister had to re- spond to requests for ministerial relief within reasonable period of time, with outer limit of four years subject to adjustment for various circumstances. Minister had not provided satisfactory justification for latest 45 months of delay. No alternative remedy was available to FN to obtain re- lief from determination that he was inadmissible to Canada. Or- der of mandamus had potential to be of very real practical value to FN; there was no equitable bar to order of mandamus; and bal- ance of convenience favoured grant of mandamus. Tameh v. Canada (Minister of Public Safety and Emergency Preparedness) (2017), 2017 Car- swellNat 804, 2017 FC 288, Paul S. Crampton C.J. (F.C.). Balance of convenience favoured Minister in attempts to enforce nine-year-old deportation order Applicant came to Canada with parents when he was infant, but never became Canadian citizen. Applicant had history of mental illness, drug use and extensive criminal record. Applicant was declared inadmissible for seri- ous criminality following con- viction for assault with weapon. Deportation order was issued and applicant obtained several stays. Applicant wanted stay pending determination of his application for leave and judicial review of officer's decision dis- missing his motion for deferral of removal to Netherlands pend- ing application for permanent residence on humanitarian and compassionate grounds. Ap- plicant asserted he would suf- fer irreparable harm if removed because he would not be able to access health care, housing, income or social network in Netherlands. Applicant brought motion for urgent stay of execu- tion of deportation order. Mo- tion dismissed. Applicant failed to establish non-speculative, real risk of irreparable harm. Judge who granted prior stay revisited matter on challenge by applicant to refusal to defer removal, and found applicant was no longer reliant on Canadian support network, was not taking medi- cation, had less need for medical care, and had financial resources to ensure he would not be home- less upon arrival in Netherlands. Applicant had not committed offences in nearly five years, in- dicating his medical condition had stabilized. Applicant's sta- bilized condition would remove barriers to obtaining social services in Netherlands. Dutch nationals were entitled to so- cial benefits, including housing, and English was widely spoke. There was no non-speculative evidence removal would cause applicant's mental condition to deteriorate. Balance of conve- nience favoured Minister in its attempts to enforce nine-year- old deportation order. Applicant now had three years to get affairs in order, and would suffer some inconvenience, but had taken no proactive steps to alleviate it. Van Heest v. Canada (Min- ister of Citizenship and Immi- gration) (2017), 2017 Carswell- Nat 772, 2017 FC 263, Paul S. Crampton C.J. (F.C.). Intellectual Property PATENTS Actions for infringement Proper measure of damages was reasonable royalty for competitor's use of patented technology Plaintiff patent holder, D Inc., D Co., D ULC, owned pat- ent directed to polyethylene used to make "film" products, which was published in 1994, issued in 2006, and expired in 2014. Trial judge allowed patent holder's action and found that competitor infringed claims by manufacturing in Canada and distributing and selling film- grade polymers. Judge held that patent holder was entitled to damages under s. 55(2) of Patent Act, and to elect either account- ing of competitor's profits or all damages sustained by reason of infringement under s. 55(1) of Act. Patent holder elected re- covery of competitor's profits. Reference was held to deter- mine quantum of award. Order was made. Proper measure of damages under s. 55(2) of Act was reasonable royalty for com- petitor's use of patent holder's patented technology from time that competitor's product was launched in 2002 until patent was issued in 2006. Patent hold- er sought compensation from 2004 to 2006, accepting that it may be barred by limitations from claiming reasonable roy- alty prior to 2004. Appropriate rate for reasonable royalty for period 2004 to 2006 was 8.8 per cent. Adjusted net revenue aris- ing from competitor's infringe- ment of patent should be based on competitor's gross sales rev- enues plus billed surcharges less billed price reductions, rebates and cash discounts. Reason- able compensation should be calculated by multiplying com- petitor's adjusted net revenues by royalty rate of 8.8 per cent. Patent holder was entitled to portion of competitor's profit that was causally attributable to invention. Patent holder was entitled to "springboard" prof- its based on revenues attrib- uted to "springboard" period using specified monthly ramp up percentages. Certain costs were deducted from revenues, including costs associated with production of ethylene using full cost or absorption account- ing approach, and proportional amount of capital depreciation and fixed costs because com- petitor would have sold other products if it were not manufac- turing infringing products. Dow Chemical Company v. Nova Chemicals Corporation (2017), 2017 CarswellNat 1891, 2017 FC 350, Simon Fothergill J. (F.C.). Tax Court of Canada Tax GOODS AND SERVICES TAX Special rules Management agreement creating agency relationship 572 Ltd. was owner of two com- mercial rental buildings forming part of multi-building common- strata complex. Other buildings in complex were owned by other entities and certain common ar- eas were owned together by all owners as tenants-in-common. Buildings were subject of co- tenancy agreement between all owners. Under management agreement, S Inc. agreed to man- age specified maintenance and owners paid proportionate share of expenses incurred by S Ltd. on their behalf, including HST, and pay management fee to S Inc.. S, shareholder of 572 Ltd., testi- fied that S Inc. was not registrant under Excise Tax Act and there- fore never claimed any income tax credit for GST or HST paid in respect of any services that it contracted for on behalf of own- ers. S Inc. acquired parking area forming part of complex with funds contributed by owners. S alleged that trust agreement was drawn up indicating that S Inc. would hold legal title and own- ers would have beneficial own- ership of property. MNR denied 572 Ltd.'s claim for input tax credit in respect of HST paid by S Inc. on basis that 572 Ltd. did not provide proof of agency or trust relationship between S Inc. and 572 Ltd.. Appeal allowed. Management agreement pro- duced by 572 Inc. was in effect during relevant reporting period and it created agency relation- ship between owners including 572 Inc. and S Inc.. 572256 Ontario Limited v. The Queen (2017), 2017 Car- swellNat 3581, 2017 CarswellNat 3710, 2017 TCC 108, 2017 CCI 108, B. Paris J. (T.C.C. [Informal Procedure]). Ontario Civil Cases Construction Law CONSTRUCTION AND BUILDERS' LIENS Practice on enforcement of lien Deviation from fundamental principle that final judgment marks end of litigation not warranted Action was brought to enforce construction lien for materials and services supplied by plain- tiff. Parties came to agreement to settle action on eve of trial. Defendants brought motion to enforce terms of minutes of settlement. Motion judge re- leased endorsement, determin- ing, among other things, that settlement agreement was valid and enforceable. No order was signed, issued, and entered in respect of endorsement, and no appeal was brought from it. Defendant brought motion for order directing rehearing of motion due to motion judge's retirement before hearing was completed, or for order setting aside endorsement and re-listing action for trial. Plaintiff brought cross-motion for relief including order carrying endorsement into operation. Motion dismissed and cross-motion granted. With respect to defendant's request for rehearing of motion, s. 123 of Courts of Justice Act was not en- gaged in that motion judge gave decision. There was lengthy and unexplained delay in defendant moving, of approximately two years before present motion was brought, and there was no new evidence that would form basis for granting relief under R. 59.06 of Rules of Civil Procedure. There was no basis upon which it could be concluded that defen- dant was denied natural justice. Defendant failed to demonstrate circumstances which would warrant deviation from funda- mental principle that final judg- ment, unless appealed, marks end of litigation. Patra Ironworks & Railings v. Laurin General Contractor (2017), 2017 CarswellOnt 12477, 2017 ONSC 1690, Daley R.S.J. (Ont. S.C.J.). Family Law COSTS In family law proceedings generally Woman awarded costs after success on support issue and divided success on property Parties were in common-law re- lationship and had two children. Parties initially lived in property man owned and then purchased rural property with woman con- tributing $20,000 to purchase price and man contributing $10,000. Man sold property he owned and contributed $113,888 of proceeds to pay for renova- tions. Man transferred his in- terest in property to woman in order to facilitate future sever- ance of property. After parties separated, woman was ordered to transfer title of residential lot to man. Motion judge granted man's motion for division of equity in property according to parties' respective contributions and partially granting woman's motion for equal division of property and child support. Par- ties made submissions on costs. Man was to pay costs of $32,000 including $2,000 for disburse- ments, plus HST, and $2,500 for pre-judgment interest. Woman made two offers to settle, and man made one offer, that were compliant with Family Law Rules. Woman was wholly suc- cessful on issue of parties' quali- fying incomes for child support, but there was divided success on property issues. Amount awarded to woman on property issues was substantially greater than what man proposed. Full recovery costs sanction applied to woman's offer regarding child support issues. Taking into ac- count woman's success on child support issue and her greater success on property issues than man, fair and reasonable award for time spent by her lawyer was $30,000. It would be fair and reasonable to award woman pre-judgment interest of $2,500 relating to property and support issues. Barnett v. Lindsay (2017), 2017 CarswellOnt 7820, 2017 ONSC 3075, D.A. Jarvis J. (Ont. S.C.J.); additional reasons (2016), 2016 CarswellOnt 12258, 2016 ONSC 3087, D.A. Jarvis J. (Ont. S.C.J.).

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