Federal Court of Appeal hears trademark, immigration cases this week

This week, the Federal Court of Appeal heard matters dealing with the distinctiveness of design marks and jurisdiction under the Immigration and Refugee Protection Act. Hearings of the Federal Court dealt with issues involving fair representation and access to information.

Federal Court of Appeal

On Wednesday, the appellate court heard the appeal in Dorinela Pepa v. Minister of Citizenship and Immigration, A-136-21. Here, the Immigration Division (ID) issued an exclusion order upon finding the appellant, an Albanian citizen, inadmissible based on misrepresentation under s. 40(1)(a) of the Immigration and Refugee Protection Act, 2001.

The appellant asked the Immigration Appeal Division (IAD) to overturn the exclusion order based on humanitarian and compassionate considerations. The IAD dismissed the appeal for lack of jurisdiction. The appellant had no right of appeal under s. 63(2) of the Act because her permanent resident visa, which expired in September 2018, was no longer valid when the ID issued the exclusion order, the IAD said.

The appellant filed a judicial review application. The Federal Court certified as a serious question of general importance the issue of whether, for the purposes of determining its jurisdiction to hear the appeal under s. 63(2), the IAD should assess the visa’s validity at the time of arrival in Canada, at the time of the making of the report under s. 44(1), at the time of the referral to the ID, or at the time of the issuance of the exclusion order.

The appellant asked the appellate court to allow her judicial review application and to return the matter to the IAD for disposition. Alternatively, the appellate court could order a new judicial review hearing before a different judge, she said.

The appellate court also heard the appeal in Milano Pizza Ltd. et al v. 6034799 Canada Inc. et al, A-93-22. Here, Milano Pizza Ltd. sued the respondents under the Trademarks Act, 1985. It alleged that it was entitled to relief based on the following:

• the respondents’ unauthorized use of the Milano design mark under s. 19
• the respondents’ unauthorized use of trademarks that were confusing with the design mark under s. 20
• the depreciation of its goodwill in the design mark under s. 22
• the respondents’ passing off of their goods and services as and for those of Milano under ss. 7(b) and 7(c)

The respondents filed a counterclaim. They argued that the Milano design registration was invalid because the design mark was not distinctive. The Federal Court agreed that the Milano design mark lacked distinctiveness. It granted the respondents’ invalidity counterclaim on that basis and dismissed Milano’s action.

On appeal, Milano claimed that its design mark was inherently distinctive. Its design mark was distinctive under s. 2 because it acquired distinctiveness at least within Ottawa and the surrounding area, Milano said.

Federal Court

On Monday, the court heard the case of Preventous Collaborative Health v. Canada (Minister of Health), T-189-19. The dispute involved a request under the Access to Information Act, 1985 for certain documents in the federal health minister’s possession. Some documents concerned the following third parties: Preventous Collaborative Health, Provital Health, and the Copeman Healthcare Centre.

The third parties filed an application under s. 44 of the Act seeking to prevent disclosure. They then moved for disclosure under r. 317 of the Federal Courts Rules, S.O.R./98-106 in an attempt to access records that the health minister gathered in response to the request. The Federal Court ruled in the third parties’ favour and found that r. 317 applied to s. 44 applications.

In Canada (Health) v. Preventous Collaborative Health, 2022 FCA 153, the Federal Court of Appeal allowed the health minister’s appeal and dismissed the third parties’ motion. It held that r. 317 was inapplicable to s. 44 applications. A s. 44 application was not a judicial review application so there was no record on a judicial review that was susceptible to production under r. 317, the appellate court explained.

On Tuesday, the Federal Court heard the case of Christopher Priest v. Professional Institute of the Public Service of Canada, T-239-23. The dispute arose when an employee of the Canada Revenue Agency filed grievances alleging that certain staffing actions amounted to age-based discrimination. He brought a judicial review application challenging the dismissal of his grievances before the Federal Court.

The employee also filed a complaint with the Federal Public Sector Labour Relations and Employment Board. He alleged that his bargaining agent, the Professional Institute of the Public Service of Canada, violated its duty of fair representation in connection with the grievances and the Federal Court proceedings.

In Priest v. Professional Institute of the Public Service of Canada, 2023 FPSLREB 2, the Federal Public Sector Labour Relations and Employment Board closed the file. It determined that the parties reached a valid, binding, and final settlement agreement. The employee breached the settlement agreement while the institute did not, the tribunal said.

Also on Tuesday, the Federal Court heard the case of Louis Dreyfus Commodities Canada ULC v. Canadian National Railway Company, T-1292-15. The plaintiff in this case relied on the defendant’s rail network to transport grain from elevators that it owned and operated. In 1999, the parties entered into a confidential contract regarding the defendant’s obligations relating to new grain elevators in Saskatchewan and Alberta.

The Canadian Transportation Agency held that the defendant fell short of its service obligations under s. 113 of the Canada Transportation Act, 1996. The plaintiff sought damages from the defendant under s. 116(5) of the Act.

The Federal Court decided that it had the jurisdiction to hear the damages claim. The defendant appealed. In Canadian National Railway Company v. Louis Dreyfus Commodities Canada Ltd., 2019 FCA 9, the Federal Court of Appeal dismissed the appeal and refused to comment on the Federal Court judge’s interpretation of the contract.