MLB-Slaw Selected Case Summaries

Here you'll find weekly summaries of selected cases provided to Slaw by Maritime Law Book's National Reporter System.

Apr 18

Yazdanfar v. College of Physicians and Surgeons (Ont.)

Medicine - Discipline for professional misconduct - Professional misconduct or conduct unbecoming a member - Standards of practice

A doctor, who qualified in family practice, focussed her practice on liposuction and breast augmentation at her out-patient clinic. The death of a patient following a liposuction procedure was the catalyst for an investigation involving a number of patients and ultimately discipline proceedings. The Committee of the College of Physicians and Surgeons of Ontario found that the doctor had repeatedly and knowingly breached the standard of practice of the profession, was guilty of professional misconduct and was incompetent. The Committee suspended the doctor’s registration for two years and indefinitely prevented her from practicing other than as a surgical assistant. The doctor appealed.

The Ontario Divisional Court dismissed the appeal.

Editor’s Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book’s editorial policy or otherwise.

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Tremblay v. Orio Canada Inc.

Copyright - Transfer of copyright - Assignment - What constitutes

The defendant contracted with the plaintiff to continue the development of the defendant’s software (SAM). The plaintiff and his employees developed a modified SAM program. The defendant provided the source code of the modified SAM program to a third party developer who developed a reworked modified SAM program. The plaintiff sued the defendant seeking a declaration that (1) he owned the copyright in the developments and improvements made to the modified program; (2) the defendant infringed his copyright by allowing and authorizing the third party developer to copy the source code; and (3) the defendant infringed his copyright by possessing and selling the modified program and installing it on its clients’ computers. In this motion for summary trial, the plaintiff also sought an order that the defendant delete and destroy its copies of the reworked modified program and enjoining it from selling and installing it. The defendant counterclaimed, seeking, inter alia, summary judgment in its favour and an order dismissing the plaintiff’s motion and declaring that it owned the copyright in the modified program. Alternatively, the defendant sought a declaration that it held a licence to use, sell and reproduce the modified program.

The Federal Court, in a decision reported at 426 F.T.R. 148, concluded that, inter alia, (1) the plaintiff owned the copyright in the modified program; (2) the plaintiff did not assign his copyright to the program to the defendant; (3) the plaintiff granted an implied user licence to the defendant authorizing it to use the modified program; and (4) the plaintiff’s copyright was not infringed by the defendant. The plaintiff appealed, asserting that the judge erred in extending the scope of the licence beyond the marketing of the software so as to include a right to copy the source code and rework it to create the reworked modified program .

The Federal Court of Appeal dismissed the appeal.

Editor’s note: For a related case involving the same parties see [2011] F.T.R. Uned. 910.

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R. v. So (U.)

Criminal Law - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show)

The accused was charged with driving while “over .08” contrary to s. 253(1)(b) of the Criminal Code. At trial, the accused attempted to displace the Criminal Code presumption that the breathalyzer analysis was accurate. He argued that the approved breath sample instrument (an Intoxilyzer 5000C) was improperly operated because the technician did not follow certain procedures in the technician’s operator’s manual prepared by the Calgary Police Service. Specifically, the manual directed technicians to “make sure” a test subject’s mouth was free of mouth alcohol before taking a breath sample. Here, the technician allegedly failed to keep the accused under observation for 20 minutes prior to testing and thus failed to ensure that his mouth remained free of alcohol which might have entered his mouth due to burping as required by the manual.

The Alberta Provincial Court, in a decision reported [2013] A.R. Uned. 316, convicted the accused, holding that he failed to establish evidence to the contrary on the balance of probabilities and, therefore, failed to rebut the presumption of accuracy. Absent that rebuttal, the certificate of analysis stood as conclusive evidence that the accused operated his motor vehicle while having an excessive blood alcohol content. The accused appealed, arguing that there was reasonable doubt that the breathalyzer instrument was properly operated due to the qualified technician failing to follow the testing procedure set out in operator’s manual.

The Alberta Court of Queen’s Bench (summary conviction appeal court) dismissed the appeal. The accused applied for leave to appeal.

The Alberta Court of Appeal, per O’Ferrall, J.A., granted leave to appeal.

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Ducharme v. Borden

Family Law - Domestic violence or exploitation - Anti-stalking legislation - Protection order - When available or appropriate

The applicant obtained a protection order under the Domestic Violence and Stalking Act to stop his former girlfriend, the respondent, from stalking him. After a review hearing, a judge set aside the protection order and awarded the respondent costs of $10,000 plus disbursements payable within six months. The applicant appealed.

The Manitoba Court of Appeal dismissed the applicant’s appeal from the decision to set aside the protection order, but allowed the appeal respecting the order of costs.

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Chitrakar v. Bell TV

Damages - Exemplary or punitive damages - Violation of privacy

Chitrakar applied for relief against Bell TV under s. 14(1) of the Personal Information Protection and Electronic Documents Act (PIPEDA), because Bell TV ordered a credit report without his consent.

The Federal Court allowed the application and awarded damages of $10,000 plus exemplary damages of $10,000.

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Apr 9

Pan Canadian Mortgage Group III Inc. v. 0859811 B.C. Ltd. et al. 2014 BCCA 113

Sale of Land - Remedies of purchaser - Purchaser’s lien - General

The purchasers entered into agreements with Lalli, whom they believed was acting on behalf of the owner of real property to be developed into townhouses. Each purchaser paid the entire purchase price for a townhouse to Lalli, but acknowledged in the agreement that a strata lot could not be sold before property was properly stratified, so that the purchaser would not acquire an interest in the land until he ratified the deal at a later stage. As well, each agreement contained a “protective clause” in which the purchaser acknowledged that the agreement created contractual rights only. Months later, Lalli notified the purchasers that the project would not be going ahead and that he hoped to return the purchase monies to them. The property was foreclosed and sold. Some $2.5 million remained in trust after payment of the mortgage. This part of the foreclosure proceeding concerned priorities as between the purchasers and the holders of registered judgments.

The British Columbia Supreme Court, in a decision reported at [2013] B.C.T.C. Uned. 1078, granted “purchasers’ liens” to the purchasers, making them secured creditors ranking ahead of judgment creditors. Pan Canadian Mortgage Group III Inc. and others appealed.

The British Columbia Court of Appeal allowed the appeal. A purchasers’ lien was security for monies paid under a binding contract of purchase and sale which gave rise in equity to equitable title to the land to the extent of the purchaser’s payment. The agreements were not binding contracts for the purchase and sale of property. Further, the protective clauses negated any intention on the part of the contracting parties to create an interest in the land.

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Workers’ Compensation Board (N.W.T. and Nunavut) v. Mercer et al. 2014 NWTCA 1

Civil Rights - Discrimination - Facilities and services customarily available to public - Discrimination on basis of social condition or source of income

A seasonal worker suffered an employment-related injury. He received less workers’ compensation than would have been paid to a permanent worker who suffered the same injury. As a result, he made a complaint to the territorial human rights commission that he had suffered discrimination on the basis of his social condition, a prohibited ground within the Human Rights Act (HRA). The adjudicator concluded that the Workers’ Compensation Board of the Northwest Territories had discriminated against Mercer on the basis of his social condition in assessing his claim for workers’ compensation for a work-related accident, in violation of ss. 5 and 11 of the HRA. The adjudicator declared that the practice was discriminatory under the HRA, ordered the WCB to amend its policies accordingly and to pay the worker the difference between the benefits he received and what he would have received but for the discriminatory policy. The adjudicator did not award collateral damages for humiliation and embarrassment or resulting economic loss. The WCB appealed the adjudicator’s finding on discrimination, while the worker appealed her conclusion on remedy.

The Northwest Territories Supreme Court dismissed the WCB’s appeal and allowed the worker’s appeal. The court remitted the issue of collateral damages to the adjudicator. The WCB appealed.

The Northwest Territories Court of Appeal dismissed the appeal.

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Khela v. Mission Institution (Warden) et al. 2014 SCC 24

Habeas Corpus - Grounds for issue of writ - Imprisonment - Change of conditions of (incl. transfers)

The Warden of Mission Institution decided to transfer a federal inmate (Khela) from the medium security Mission Institution to the maximum security Kent Institution on an emergency and involuntary basis. Khela made an application for habeas corpus in the British Columbia Supreme Court.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 721, granted the writ. The court held that on a habeas corpus application, a provincial superior court had jurisdiction to review a warden’s transfer decision for reasonableness. However, the court held that it was unnecessary to address Khela’s argument that the transfer decision was unreasonable, because the court found the transfer to be unlawful on the basis of insufficient disclosure to Khela. As a result of that failure to disclose, the court declared the Warden’s decision “null and void for want of jurisdiction”. The court ordered Khela’s return to the general population of Mission Institution. The Warden appealed.

The British Columbia Court of Appeal, in a decision reported at (2011), 312 B.C.A.C. 217; 531 W.A.C. 217, allowed the appeal but only to the extent of limiting the order of the court below to read that habeas corpus was granted and that Khela should be returned to a medium security institution. The court found that it was unnecessary and undesirable to state that the transfer was “null and void for want of jurisdiction”. In substance, however, the Court of Appeal largely agreed with the decision of the British Columbia Supreme Court. The Warden appealed.

The Supreme Court of Canada dismissed the appeal. Superior courts were entitled to review an inmate transfer decision for reasonableness on an application for habeas corpus with certiorari in aid. If a decision was unreasonable, it would be unlawful. Moreover, a superior court hearing a habeas corpus application could also review a transfer decision for procedural fairness. The Corrections and Conditional Release Act outlined the disclosure that was required for a reviewing court to find such a decision fair, and therefore lawful. In this case, the correctional authorities did not comply with the statutory disclosure requirements. The breach of the statutory requirements rendered the decision procedurally unfair, and therefore unlawful. The British Columbia Supreme Court properly granted habeas corpus.

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Apr 2

Union Gas Ltd. v. Ontario Energy Board 2013 ONSC 7048

Public Utilities - Public utility commissions or corporations (incl. private providers) - Regulation - Rates - Power to fix just and reasonable rates

Union Gas Ltd. appealed from a November 19, 2012 decision of the Ontario Energy Board, referred to as Board proceeding EB-2012-0087. The purpose of that proceeding was to determine the amount of Union Gas Ltd.’s 2011 utilities earnings that would be returned to ratepayers through an Earnings Sharing Mechanism (ESM). Specifically, the proceeding focussed on $22 million of earnings related to the Firm Transportation Risk Alleviation Mechanism, a program initiated by Trans-Canada Pipelines and made available to all gas utilities in the country. The Board determined that the revenue generated by those transactions could not properly be described as “utilities revenue” but was in fact “gas transportation costs”, the profits of which should have been passed on to the ratepayers instead of being divided in accordance with the ESM that applied to “utilities revenue”, which would have resulted in $5.3 million less being returned to ratepayers. Union Gas submitted that the classification of the funds as “gas transportation costs” amounted to impermissible retroactive ratemaking.

The Ontario Divisional Court, Wilton-Siegel, J., dissenting, dismissed the appeal.

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Lockridge et al. v. Ontario (Minister of Environment) et al. 2012 ONSC 2316

Evidence - Opinion evidence - Expert evidence - General - Admissibility - General 

The applicants applied for judicial review of a decision made by the Director of the Ministry of the Environment under the Environmental Protection Act (EPA) in April 2010, respecting the sulphur output of Suncor Energy Products Inc.’s Plant #4 Sulphur Recovery Unit in Sarnia. The applicants were residents of the area and members of a First Nations Community. Central to their application was the claim that the Director’s failure to conduct a cumulative effects assessment before making his decision infringed their ss. 7 and 15 Charter rights, as well as their rights to procedural fairness. The applicants also sought a protective costs order insulating them, absent improper conduct during the litigation, from adverse costs if their application was ultimately unsuccessful. The respondent Suncor moved to strike the application as a collateral attack on earlier approvals granted to it under the EPA regime. All of the respondents also moved to strike some or all of the applicants’ affidavit evidence. They argued that as the issues in the application only related to the April 2010 Decision, much of the evidence filed by the applicants respecting emissions that were not the subject of that decision, or the health effects allegedly flowing from those emissions, was irrelevant. They also sought to strike considerable amounts of the evidence on the grounds that it was improper opinion evidence, inadmissible hearsay, argument or speculation.

The Ontario Divisional Court, per Harvison Young, J., dismissed the motion to dismiss the application. The court partly allowed the motion to strike evidence, and otherwise dismissed it without prejudice to the respondent’s right to contest the admissibility before the hearing panel. The court dismissed the motion for a protective costs order.

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