In today’s litigation landscape 95% to 97% of all civil cases are settled without a trial. Settlement negotiations increasingly happen informally, over email, through a back-and-forth dialogue between counsel. What happens when one party steadfastly believes a settlement was reached and moves to enforce that settlement and the other party disagrees? This was the situation before the Federal Court of Appeal in Apotex Inc v Allergan Inc, where a collection of “without prejudice” letters and emails formed the basis for Allergan Inc (“Allergan”) to argue that Apotex Inc (“Apotex”) had agreed to settle a patent … Continue Reading
In an important decision regarding the jurisdiction of the Federal Court in aboriginal claims, the Federal Court of Appeal has affirmed the right of the Pasqua First Nation to sue the Government of Saskatchewan in the Federal Court for breach of a settlement agreement on the basis of an attornment clause. In Canada v Peigan, 2016 FCA 133, Saskatchewan argued that notwithstanding the attornment clause, which directed that any disputes arising under the settlement agreement be determined by the Federal Court, it was immune from suit in the Federal Court and, alternatively, that the suit did not fall within … Continue Reading
The Federal Court of Appeal recently clarified the applicable test for challenging a trade-mark that is clearly descriptive of a good’s place of origin, pursuant to s. 12(1)(b) of the Trade-marks Act, RSC 1985, c. T-13 (the “Act”). The Court also articulated how such a trade-mark could still be ruled distinctive, and, accordingly valid: good old fashioned proof!
The context for the decision in MC Imports Inc. v. AFOD Ltd., 2016 FCA 60  was a dispute between two importer-distributors of bagoong, a fish and shrimp based condiment from the Philippines.… Continue Reading
In Sadhu Singh Hamdard Trust v. Navsun Holdings Ltd. (2016 FCA 69), the Court of Appeal set aside the Federal Court’s (2014 FC 1139) decision dismissing Hamdard Trust’s claim of copyright infringement and passing off against Navsun Holdings and remitted the matter to the Federal Court for redetermination, with some guidance.… Continue Reading
In its recent decision in Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, the Federal Court of Appeal held that the rule of law can require the Court to apply a correctness standard of review to administrative decisions concerning the interpretation of the governing statute in certain cases, such as where adjudicators have long held conflicting interpretations of a particular provision.
Acknowledging that a labour adjudicator’s interpretation of a labour statute would be typically subject to a reasonableness review, the Court held that, where adjudicators have disagreed on a point of statutory interpretation for many years, the … Continue Reading
I can’t predict the future and I don’t have respect for people who try to.
-Jackie Mason (1931-)
As part of the Appeals Monitor’s annual attempt to give lawyers something to talk about over the holidays other than the two traditional Canadian touchstones (weather and hockey), we are proud to once again this year present our top ten anticipated appeals for the new year. Of course, we can’t control what the judges will actually do with these cases, but we think these are the ones worth watching.
Generally speaking, the Federal Court does not have jurisdiction over the provincial Crown. Confusion arises when the subject matter of a claim is within the realm of the Federal Court and the claim is an in personam. The recent Federal Court of Appeal decision of Canada v. Toney, 2013 FCA 217 affirms that there remain limited instances where the Federal Court has jurisdiction over a province, even if other factors suggest that a claim would be properly put before the Federal Court.
The Toney family experienced a boating malfunction when sailing in Alberta. The rescue vehicle, which… Continue Reading
A case recently decided by the Federal Court of Appeal reiterates the very high standard of good faith to which the Minister of National Revenue (the “Minister”) must be held when dealing with the courts in the context of an ex parte application provided by the Income Tax Act (“ITA”). For example, the Minister cannot ignore and omit to mention internal evidence which it knows weakens its position, or hide ulterior motives.
Context: Third-Party Information Concerning “10-8” Plans
In Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50 (“RBC Life”), the… Continue Reading
The Supreme Court of Canada heard arguments this week in four interrelated cases of interest to Canadian businesses and professions, and reserved judgment in each.
The four copyright cases, which canvas a variety of issues under the Copyright Act, arise from the decision of the Québec Court of Appeal in France Animation v. Robinson, 2011 QCCA 1361. Robinson alleged that Cinar’s cartoon Robinson Sucroë was a copy of his own work Robinson Curiosité. The trial judge found infringement and the Court of Appeal upheld the Superior Court’s finding that an original work existed and was infringed … Continue Reading
The Supreme Court of Canada heard arguments this week in two cases of interest to Canadian businesses and professions, and reserved judgment in each.
The first is an appeal from Guay Inc. c. Payette, 2011 QCCA 2282, in which the Quebec Court of Appeal held that restrictive covenants which precluded the appellant from competing with or soliciting customers of the respondent for five years after termination of his employment were valid, notwithstanding the trial judge’s findings below that the appellant had been wrongfully dismissed by the respondent and that the covenants were too broad to be enforced.… Continue Reading
The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.
In Newfoundland and Labrador v. AbitibiBowater Inc., 2012 SCC 67, the majority of the Court held that environmental protection orders issued under provincial legislation, which required an insolvent company to undertake remediation measures but which were not expressed in monetary terms, nonetheless amounted to “claims” under the Companies’ Creditors Arrangement Act (“CCAA“) that could be stayed and subject to a claims procedure order in the context of CCAA proceedings. The Court observed that not all environmental protection orders will … Continue Reading
Are lower courts obliged to follow precedents of the Supreme Court of Canada, even if those precedents are decades-old and have been the subject of extensive criticism? And when should the Court overrule one of its own precedents? The Court recently addressed both of these questions in Canada v. Craig, a tax case involving the deductibility of losses from a lawyer’s horse racing business. Notably, in this case the Court overruled a precedent from 1977, on the basis that there were compelling reasons indicating that the precedent was wrongly decided. At the same time, the Court held that the… Continue Reading
In an eagerly anticipated decision, the Federal Court of Appeal has allowed in part Imperial Tobacco’s unique infringement lawsuit against Philip Morris in the Marlboro Canada Ltd. v. Philip Morris Products S.A. decision. This lawsuit involved the first cigarette package in the world that bore no brand name, with the plaintiff claiming instead that the visual appearance and idea of the package evoked its registered trade-mark MARLBORO. This theory has now won out on appeal, and may increase the ability of registered trade-mark owners to target competitors evoking the idea of their brands without actually employing the key marks.
The Supreme Court of Canada has recently clarified in Fundy Settlement v. Canada that for the purposes of Canadian taxation the residence of a trust is where the central mind and management resides. This decision, confirming both the Tax Court of Canada and the Federal Court of Appeal lower court decisions, is a major departure from the Canada Revenue Agency’s (CRA) 30 year old administrative position that generally considered the residence of the trust as being the same as the residence of the trustees.
… Continue Reading
The Federal Court of Appeal has ruled that the “ongoing effects” of a conspiracy do not extend the applicable limitation period for the purposes of a civil action brought under section 36(1) of the Competition Act for a criminal conspiracy contrary to section 45(1). The Court of Appeal’s affirmation of the lower Court’s decision also suggests that the “ongoing damage” caused by the conspiracy does not extend the limitations period either. Instead, the limitations period starts at the latest when the plaintiff first becomes aware of the acts constituting the breach of the Act, and possibly even earlier, as … Continue Reading
In the appeal of Re:Sound v. Motion Picture Theatre Associations of Canada, the Supreme Court of Canada will be called upon to determine whether there is a right to equitable remuneration under section 19 of the Copyright Act when a pre-existing sound recording is incorporated in the soundtrack that accompanies a motion picture or a television program. The Copyright Board of Canada decided that there is no such right in this situation, and the Federal Court of Appeal dismissed the application for judicial review.… Continue Reading
Are contributions to a particular sickness and accident insurance plan for a single employee deductible for tax purposes? The Federal Court of Appeal will decide that issue when it hears the taxpayer’s appeal in Labow v. R. in Ottawa on October 4th.
The taxpayer, Dr. Labow, is a surgeon and professor of surgery. With the help of an Ottawa lawyer, he set up a trust to provide employee sickness and accident insurance and to pay medical, dental and vision care expenses. Dr. Labow had three employees in his office in the relevant taxation years, one of whom was his wife. … Continue Reading
On September 1, the Attorney General of Canada appealed the finding of the Federal Court in Abraham v. Canada, that the Minister of National Revenue had erred in denying members of the Sagkeeng Band tax relief on wages earned while working in a mill located on former reserve lands.
The Band members had contended that relief was due because of the surrounding circumstances surrounding the sale of the reserve land. In 1926, the Band received an offer to sell part of their Reserve land for the purposes of building a mill. The Band initially rejected the offer, saying that … Continue Reading
In Envision Credit Union v. R, the Federal Court of Appeal will determine whether an amalgamated corporation inherits tax accounts pursuant to common law principles, in the absence of a specific statutory rule.
The predecessors of Envision Credit Union, two Vancouver credit unions, amalgamated under B.C. credit union legislation. The amalgamation occurred in a way that did not meet the definition of “amalgamation” in section 87 of the Income Tax Act (a so-called broken amalgamation). Had that definition been met, a particular tax account – the undepreciated capital cost (UCC) – of Envision would have been reduced by depreciation… Continue Reading