Law Times

Page 14 May 14, 2018 • Law TiMes www.lawtimesnews.com CASELAW Supreme Court of Canada Remedies INJUNCTIONS Availability of injunctions Broadcaster not in criminal contempt of publication ban by revealing victim's identity on its website prior to ban being issued Accused was charged with first degree murder of person un- der age of 18. Upon Crown's request, mandatory ban prohib- iting publication, broadcast or transmission in any way of any information that could identify victim was ordered pursuant to s. 486.4(2.2) of Criminal Code. Before publication ban was is- sued, defendant broadcaster posted information revealing identity of victim on its website. Because defendant could not re- move victim's identifying infor- mation from its website, Crown sought order citing defendant in criminal contempt of publication ban and interlocutory injunction directing removal of information defendant's website. Chambers judge dismissed Crown's appli- cation. Majority of Court of Ap- peal allowed Crown's appeal and granted injunction. Defendant appealed. Appeal allowed. On application for mandatory inter- locutory injunction, appropriate criterion for assessing strength of applicant's case at first stage of test was not whether there was serious issue to be tried, but rath- er whether applicant had shown strong prima facie case. It was not for Court of Appeal to re- cast Crown's case as civil applica- tion for interlocutory injunction pending permanent injunc- tion. Crown was bound to show strong prima facie case of crimi- nal contempt of court. There was nothing in chamber judge's reasons or in reasons of majority of Court of Appeal which estab- lished that chambers judge, in re- fusing interlocutory injunction, committed any errors justifying appellate intervention. R. v. Canadian Broadcast- ing Corp. (2018), 2018 Carswel- lAlta 206, 2018 CarswellAlta 207, 2018 SCC 5, 2018 CSC 5, 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.); reversed (2016), 2016 CarswellAlta 2034, 2016 ABCA 326, Frans Slatter J.A., J.D. Bruce McDonald J.A., and Sheila Greckol J.A. (Alta. C.A.). Federal Court of Appeal Tax INCOME TAX Administration and enforcement Trust must be done in accordance with laws of Canada Tax debtor YSY transferred amounts to appellant taxpay- er JLY, who was tax debtor's brother-in-law, at time when tax debtor owed tax debt. Tax- payer alleged that funds had been received by his mother-in- law from sale of her house and she gave money to tax debtor to hold in trust for taxpayer's wife. Minister of National Revenue assessed taxpayer under s. 160 of Income Tax Act in relation to amounts that were transferred to him from tax debtor. Tax Court judge dismissed taxpayer's ap- peal on basis of insufficient evidence to establish existence of trust that had been settled with taxpayer's mother-in-law's money. Taxpayer appealed. Ap- peal dismissed. If trust was to be established in Canada, it must be done in accordance with laws of Canada, notwithstanding that taxpayer's mother-in-law was from China. There was no basis to interfere with finding that evi- dence did not establish existence of trust. There were no docu- ments to establish proceeds that mother-in-law received from sale of her house. There was no explanation why mother-in-law would give amounts to tax debt- or to hold in trust for taxpayer's wife at time when tax debtor was presumably facing criminal charges relating to marijuana grow-op. Judge did not make palpable and overriding error in finding that it was not possible to conclude that mother-in-law set aside any amount in trust for taxpayer's wife. Yu v. Canada (2018), 2018 CarswellNat 1390, 2018 FCA 68, Wyman W. Webb J.A., D.G. Near J.A., and J.B. Laskin J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 12036, 2016 Car- swellNat 8719, 2016 TCC 276, 2016 CCI 276, Patrick Boyle J. (T.C.C. [General Procedure]). Use of information or documents is relevant to admissibility not who issued requirement Minister re-assessed taxpayer for taxation years 2007 and 2008 including penalties for gross negligence. Taxpayer appealed and issued amended notice of appeal. Minister brought motion to strike several paragraphs. Mo- tion was granted and offending paragraphs struck. Taxpayer ap- pealed on ground whether in law plain and obvious that evidence obtained as result of issuance of requirement under s. 231.2(1) of Income Tax Act (ITA), when on- going investigation cannot be ex- cluded from proceedings before Tax Court under s. 8 of Charter. Appeal dismissed. While using s. 231.2 of ITA to obtain informa- tion or documents after investi- gation commenced may result in them being inadmissible in pros- ecution under s. 239 of ITA, this does not preclude information or documents being admissible in proceeding regarding validity of assessment. Use of information or documents that is relevant, not who issued requirement. Taxpayer in same position as any taxpayer appealing net worth as- sessment based on documents received following under s. 231.2 and should not be in better posi- tion simply because also under investigation under s. 239. Bauer v. Canada (2018), 2018 CarswellNat 1220, 2018 FCA 62, Wyman W. Webb J.A., D.G. Near J.A., and J.B. Laskin J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 11212, 2016 CarswellNat 2096, 2016 TCC 136, 2016 CCI 136, K. Lyons J. (T.C.C. [General Procedure]). Federal Court Intellectual Property PATENTS Actions for infringement Patent not invalid for lack of utility Plaintiffs commenced action against defendants for infringe- ment of Canadian Patent No. 2,139,653 (653 patent) and Cana- dian Patent No. 2,193,994 (994 patent). Action was bifurcated and trial proceeded on 653 pat- ent alone. Trial judge found 653 patent had required novelty and inventiveness but was invalid because it lacked utility. Trial de- cision was upheld on appeal but overturned by Supreme Court of Canada (SCC), which found trial judge applied wrong test for util- ity and declared 653 patent was not invalid for utility. Plaintiffs brought motion for declaration that defendants infringed 653 patent and directing quantifica- tion of damages or defendants' profits by reference; defendants brought cross-motion to re-open trial. Motion granted; cross-mo- tion dismissed. Validity of 653 patent was finally decided by SCC and no other validity issue remained for debate. Plaintiffs were entitled to declaration that defendants infringed 653 pat- ent and order for reference. De- termination of plaintiffs' right to elect profits would form part of reference, after discovery on both damages and profits. There was no point in re-opening trial. AstraZeneca Aktiebolag v. Apotex Inc. (2018), 2018 Car- swellNat 1395, 2018 CarswellNat 1396, 2018 FC 185, 2018 CF 185, George R. Locke J. (F.C.). Tax INCOME TAX Administration and enforcement Minister of National Revenue not having general discretionary power to not assess taxes Taxpayer's representatives did not take necessary steps to dis- solve corporation or remove her as director, despite her instruc- tions to do so. More than two years later, Canada Revenue Agency (CRA) sent director's li- ability assessments to taxpayer. Taxpayer did not respond to CRA for two years. Delegate of CRA refused to exercise dis- cretion to not enforce assess- ment issued against taxpayer because objection had not been filed within 90 days. Taxpayer brought application for judicial review of decision. Application dismissed. Federal Court did not have jurisdiction over mat- ter. Section 227(10) of Income Tax Act did not grant Minister of National Revenue general discretionary power to not as- sess taxes, nor did it grant dis- cretion to vacate or reconsider assessments. Application was at- tack on validity of assessments. Taxpayer failed to avail herself 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! 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