Law Times

Law Times • apriL 23, 2018 Page 17 www.lawtimesnews.com 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. Federal Court of Appeal Tax INCOME TAX Administration and enforcement Appeal was from order, not reasons Taxpayer filed appeal in rela- tion to ten years of assessments and brought application for ex- tension of time to file appeal in relation to those assessments. At hearing, taxpayer raised es- toppel issue that she submitted had to be addressed before de- termining consolidation of pro- ceedings. Tax Court judge dis- missed taxpayer's motion that had been withdrawn, and con- solidated application to extend time to file notice of appeal and appeal, without considering es- toppel issue. Taxpayer appealed. Appeal dismissed. There was no merit to this appeal. Appeal was from order, not reasons. Clarke v. Canada (2018), 2018 CarswellNat 777, 2018 FCA 47, Wyman W. Webb J.A., Rennie J.A., and Gleason J.A. (F.C.A.). Federal Court Intellectual Property TRADEMARKS Opposition Opponent's HONEY marks possessed at least some level of distinctiveness Applicant applied to regis- ter trademark HONEY MO- MENTS for use in relation to various personal care products. Opponent's statement of oppo- sition was rejected, on bases in- cluding that she had not estab- lished likelihood of confusion with her two HONEY trade- marks used on goods including fashion accessories and cosmet- ics. Opponent appealed, fil- ing substantial amount of new evidence addressing extent to which she had used her HON- EY marks in Canada. Appeal al- lowed. As Board repeatedly not- ed that lack of evidence of op- ponent's use of her marks played material role in its findings, new evidence would have materially affected its findings of fact and matter would be considered de novo. Based on Board's findings that many of applied-for goods appeared to target similar con- sumers as opponent's and that channels of trade were likely identical, and with evidence of opponent's use of marks dis- placing Board's assumption of de minimis use, these factors weighed heavily in opponent's favour. Opponent's HONEY marks possessed at least some level of distinctiveness, in ab- sence of evidence that "honey" was descriptive of goods or ser- vices at issue or that it had in- herently laudatory connotation and new evidence showed that marks were known to certain extent. Factor relating to length of trademarks' use also now fa- voured opponent. Board's rejec- tion of opponent's contention that use of word 'MOMENT' in conjunction with word 'HON- EY' suggested time when HON- EY brand product was used was based on absence of evidence as to use of HONEY marks, which had been addressed by new evi- dence. Board erred in drawing inference that opponent did not have monopoly of use of word "honey" in sector from existence of seven third party trademark registrations containing word "honey" in association with per- sonal care products. Board had no evidence about current use of such marks or whether mark was used in relation to similar wares or products. Opponent established on balance of prob- abilities that there was real like- lihood of confusion. McDowell v. Laverana GmbH & Co. KG (2017), 2017 CarswellNat 8317, 2017 Car- swellNat 888, 2017 FC 327, 2017 CF 327, Anne L. Mactavish J. (F.C.); reversed (2015), 2015 Car- swellNat 2761, 2015 Carswell- Nat 2762, 2015 TMOB 56, 2015 COMC 56, Natalie de Paulsen Member (T.M. Opp. Bd.). Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans Regulations stipulated that CPP benefits payable during period when individual receiving EI benefits In September 2014, individual decided to stop working due to illness and received Employ- ment Insurance (EI) benefits. Individual returned to work brief ly in 2015 but by March 2015 decided to retire and ap- plied for Canada Pension Plan (CPP) benefits, asking to re- ceive CPP benefits as soon as she qualified for them. Indi- vidual was entitled to retroac- tive CPP benefits to June 1, 2014 and as result there was overlap allegedly resulting in overpay- ment to her of $4,155.00. After Canada Employment Com- mission did not reconsider its overpayment claim, individual appealed to General Division of Social Security Tribunal. Gen- eral Division acknowledged that individual had not received complete information about consequences of receiving both EI and CPP benefits and that repaying alleged excess would cause her hardship but believed that result was consequence of Employment Insurance Regula- tions and that it had no discre- tion over matter. Regulations stipulated that individual's CPP benefits should be payable dur- ing period when she was receiv- ing EI benefits, even though she had never made request to that effect and was never informed of consequences. Individual appealed and Appeal Division denied individual leave to ap- peal on basis that she had no reasonable chance of success. Individual applied for judicial review. Application dismissed. Appeal Division's decision was not unreasonable in light of Regulations in issue. Individual had requested that she begin to receive CPP benefits as soon as she qualified for them, and this amounted to request to receive benefits as of June 1, 2014 dur- ing period that overlapped with her receipt of EI benefits. That consequence was product of duly enacted laws and regula- tions and beyond remedial au- thority of Court on application for judicial review. Dalgleish v. Canada (Attor- ney General) (2018), 2018 Car- swellNat 811, 2018 CarswellNat 929, 2018 FC 275, 2018 CF 275, James W. O'Reilly J. (F.C.). Tax INCOME TAX Administration and enforcement Delay associated with completing audit not exceptional circumstance requiring court to interfere with ongoing administrative process Employer issued non-resident taxpayer T4 for 2014 taxation year indicating employment in- come of $553,480 and income tax deducted of $205,469.25. Employer issued amended T4 at taxpayer's request changing em- ployment income from $553,480 to $923. Taxpayer applied to Canada Revenue Agency (CRA) for repayment of income tax de- ducted but was told in letter that as CRA unable to verify correct- ness of amended T4, payroll au- dit would be required. Taxpayer applied by way of judicial review for declaration that CRA erred, order of mandamus for release of funds, and costs, including public interest costs. Minister submitted application for judi- cial review was premature and court should not interfere with ongoing administrative process until it was completed. Applica- tion dismissed. Application was premature. Letter was not final decision. Delay associated with completing audit was not excep- tional circumstance requiring court to interfere with ongo- ing administrative process. Al- though not necessary to decide standard of review court would have concluded that decision to request an audit and not re- fund purportedly overpaid tax amount was both reasonable and correct. Madore v. Canada (Attor- ney General) (2018), 2018 Car- swellNat 769, 2018 CarswellNat 942, 2018 FC 244, 2018 CF 244, Richard G. Mosley J. (F.C.). Tax Court of Canada Tax INCOME TAX Administration and enforcement Director assessed for company's non-remittance of employees' income tax and net GST/HST Director was sole director of company F Ltd.. Company paid its employees wages net of source deductions and gener- ated net GST/HST but did not remit these amounts. Director was assessed for company's non- remittance of employees' federal 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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