36033  Osmose-Pentox Inc. v. Société Laurentides Inc.  (Intellectual property – Trademarks)

On appeal from the judgment of the Federal Court of Appeal pronounced June 3, 2014.  The applicant manufactures and sells wood coatings and wood preservatives under various trade-marks.  One of the products it produces is a wood primer sealer sold in containers bearing a label with the design mark . In 2002, the applicant instituted proceedings against the respondent for infringement of its right to the exclusive use of its registered trade-mark.  The respondent had been producing a wood primer sealer with a label on which it was written “Wood CONSERVATOR” and “CONSERVATEUR pour bois”.  The Federal Court found that there was no trade-mark infringement within the meaning of s. 20(1) of the Trade-marks Act, R.S.C. 1985, c. T-13 (the “Act”), and dismissed the action.  The Court also dismissed the applicant’s arguments with respect to confusion and passing-off.  The Federal Court of Appeal dismissed the appeal.

35994  Mclean v. Yaremko  (Family law)

On appeal from the judgment of the Court of Appeal for Manitoba pronounced June 4, 2014. According to the applicant, she was involved in a common law relationship with the respondent for five and a half years, during which they acquired a home and a business.  She applied to the Court of Queen’s Bench (Family Division) for division of property following separation. The Court of Queen’s Bench found that the applicant and the respondent were not involved in a common law relationship with each other, and therefore that the applicant was not entitled to share in any assets of the respondent nor in any increase in value of the assets of the respondent. The Court of Appeal dismissed the applicant’s appeal.  It held that the trial judge’s findings were entitled to deference and that the hearing was fair.  The court concluded that the applicant had not established that the trial judge made any errors of fact or law in reaching the conclusion that he did.

36024  Provigo Québec inc. v. Syndicat des travailleurs et travailleuses de Provigo, et al.  (Labour relations – Grievances – Jurisdiction of arbitrator)

On appeal from the judgment of the Court of Appeal for Quebec pronounced May 29, 2014.  The applicant is a food distribution and retail business, and 450 of its employees were represented by the respondent Syndicat des travailleurs et travailleuses de Provigo, Entrepôt Armand-Viau (“the Syndicat”).  The two parties were bound by a collective agreement for the period from February 2, 2005 to March 31, 2010, but were unable to agree on the renewal of that agreement.  The agreement contained the following clause:  [translation] “28.02  This agreement, upon expiring, becomes an interim agreement subject to the rights of the parties until the signing of a new collective agreement.” The following chain of events then took place.  The applicant exercised its right to lock the employees out on April 2, 2010.  The Syndicat called a strike against the applicant on April 8, 2010.  On April 27, 2010, the applicant sent a notice of termination of employment to all the employees in question, and a notice of collective dismissal to the Minister of Employment and Social Solidarity.  The Syndicat sent a return-to-work notice on May 12, 2010, after which it filed grievances on May 18 and June 7, 2010.  On June 22, 2010, the applicant closed the establishment in question. The grievances were submitted to arbitrator Côme Poulin, after which the applicant filed a preliminary objection to the arbitrator’s jurisdiction.  The basis for the objection was that the collective agreement between the parties had ceased to be in effect as of the start of the lockout, and that the arbitrator consequently lacked jurisdiction over the Syndicat’s grievances.  The arbitrator concluded that the notice of collective dismissal and the notice of termination constituted a unilateral act on the applicant’s part.  This unilateral act had the effect of putting an end to the lockout, which meant that the provisions of the collective agreement were applicable by virtue of the maintenance clause (art. 28.02 reproduced above).  The arbitrator accordingly held that he had jurisdiction over the grievances.  The Court of Appeal dismissed an appeal.

35989  Nisichawayasihk Cree Nation Family and Community Wellness Centre Inc. v. First Nations of Northern Manitoba Child and Family Services Authority;  and betweenNisichawayasihk Cree Nation Family and Community Wellness Centre Inc. v. First Nations of Northern Manitoba Child and Family Services Authority, et al.  (Family law — Child and family services systems — Aboriginal foster children)

On appeal from the judgment of the Court of Appeal for Manitoba pronounced May 6, 2014.  The youngest children of R.E.F. and J.A.M., were placed with foster parents in 2008 and 2009.  In late 2010 and early 2011, the children had two family visits with R.E.F. and J.A.M.  In January 2011, the Agency removed the children from the foster home in the guise of another family visit, placing them with their parents the following day.  On the same day, the foster parents were notified of the removal and of their right to appeal the decision using the three-step process in The Child and Family Services Act, C.C.S.M., c. C80, s. 51.  However, when the foster parents took the first and second steps of the s. 51 process, they were told that the appeal process was not available when children were placed with their natural parents.  When they proceeded to the third step, the Minister of Family Services and Housing ordered that an independent adjudicator be appointed.  The Agency and the Authority then applied for a declaration that foster parents are not entitled to an independent appeal when children were returned to their natural parents.  The application judge declared that s. 51(5) of the Act and s. 7 of the Foster Parent Appeals Regulation, Man. Reg. 185/2003, gave the foster parents an independent appeal of the Authority’s decision not to proceed with a reconsideration under s. 51(4) of the Act and s. 6 of theRegulation, in respect of the Agency’s decision to remove the children from the foster home, under s. 51(1) of the Act.  He indicated that he expected that an independent adjudicator would be appointed as soon as reasonably possible.  The Court of Appeal allowed an appeal in part, holding that the declaration with respect to the applicability of the appeal process where the children are removed from a foster home to be returned to their natural parents should stand.

36133  Cowichan Valley Regional District v. Paldi Khalsa Diwan Society, et al.  (Municipal law – By-laws – Zoning)

On appeal from the judgment of the Court of Appeal for British Columbia pronounced August 26, 2014.  The first four respondents own property in the applicant District (the “owners”).  A wood-fuelled crematorium was built on the property before there were zoning bylaws in effect, and was used by the South Asian community for traditional final rites. In 1998, the District passed a zoning bylaw which classified the Property as “P-1 Zone – Parks and Institutional”.  In 2010, the owners obtained a building permit to construct a gas-fuelled crematorium on the property and leased the new crematorium to the fifth respondent (“CVCL”).  CVCL obtained a licence from Consumer Protection B.C. to operate a commercial crematorium on the basis of the building permit.  When the District later notified the owners that a commercially operated crematorium was not a permitted use for the property and refused to provide documentation required for a licence under the regulations, the respondents brought a petition seeking a declaration that a commercial crematorium is a permitted use in the P-1 Zone, and an order in the nature of mandamus compelling the District to provide the required documentation.  The Supreme Court of British Columbia dismissed the petition, finding that a crematorium does not come within the ordinary meaning of “institution” and, in any event, a commercial crematorium was not a permitted use under P-1 zone.  The Court of Appeal allowed the appeal, set aside the lower court order, and granted the declaration and order in the nature of mandamus

36098  Information and Privacy Commissioner of Alberta v. Imperial Oil Limited, City of Calgary, et al. (Information and Privacy Commission — Standing)

On appeal from the judgment of the Court of Appeal for Alberta pronounced July 16, 2014.  The applicant, the Information and Privacy Commissioner of Alberta asks for leave to appeal the Court of Appeal’s decision quashing its appeal from the chambers judge.  The chambers judge had set aside the Commissioner’s order that required Alberta Environment to disclose to the City of Calgary a Remediation Agreement entered into between Imperial Oil, a Director of Environment, and others. The Court of Appeal of Alberta dismissed the appeal by Alberta information and Privacy Commissioner.

36093  McCombie, et al. v. Phillion;  and between A.G. Ontario v. Phillion  (Civil procedure – Abuse of process)

On appeal from the judgment of the Court of Appeal for Ontario pronounced July 31, 2014.  In 1972, a jury convicted the respondent of the 1967 murder of Leopold Roy.  The respondent had confessed to the murder, but retracted his confession soon after making it.  He maintained his innocence throughout his 31-year-incarceration.  In 1998, he received disclosure of information that supported his alibi.  With the assistance of the Innocence Project, the respondent was able to get the matter of his conviction referred to the Court of Appeal for Ontario.  In 2009, the Court of Appeal admitted new evidence relating to the non-disclosure of alibi evidence and certain witness statements, quashed the conviction and ordered a new trial.  In 2010, the Crown announced it would not proceed with a new trial given the passage of time.  In 2012, the respondent brought an action in damages against the police and the Crown.  The applicants brought motions to have the action struck.  These were allowed.  The respondent appealed, and the Court of Appeal overturned the ruling.

36109  Beaudoin v. The Queen  (Criminal law – Second-degree murder – Charge to jury)

On appeal from the judgment of the Court of Appeal for Quebec pronounced February 7, 2014.  A jury found the applicant guilty of the second-degree murder of Robert B. Ness.  Mr. Ness died in his home on the night of October 15 to 16, 2007.  The cause of death was smothering resulting from adhesive tape on his face, and his tongue being squeezed in the back of his throat.  DNA evidence, eyewitness identification evidence and evidence of possession of property stolen from the victim led to the applicant.  The applicant called no witnesses in his defence.  The Court of Appeal dismissed an appeal by the applicant.  It held, inter alia, that the doctrine of recent possession of stolen property was clearly applicable to the offence of murder if the jury concluded that the applicant was in recent possession of the stolen property.  The court found that the judge’s instructions in this regard were beyond reproach.

36137  Teskey v. A.G. Canada  (Charter of Rights – Right to equality – Have the rules governing the Royal Succession been received into the law of Canada)

On appeal from the judgment of the Court of Appeal for Ontario pronounced August 22, 2014.  The applicant, a Roman Catholic, objects to Canada’s participation in a Commonwealth agreement assenting to changes in the rules of royal succession proposed by the United Kingdom.  The changes abolish the system of male preference primogeniture and remove the provision rendering anyone who marries a Roman Catholic ineligible for succession. He argues that the changes should also have permitted Roman Catholics to succeed to the throne and their failure to do so renders the legislation discriminatory and contrary to s. 15 of the Charter.  He brought an application requesting, inter alia, a declaration that The Canada Act, 1982, (U.K.) 1982, c. 11 prevents Canada from consenting to legislation passed by the Parliament of the United Kingdom to change the rules of succession for the Crown and for a declaration that all legislative provisions prohibiting Catholics from ascending to the Crown of Canada are of no force and effect.  The Superior Court of Justice dismissed the application on the basis that it did not raise a justiciable issue and the applicant does not have standing. The Court of Appeal dismissed the appeal.