Judicial review, professional misconduct, de facto officer doctrine

Successful appeal from CA – Iconix owned sportswear brand UMBRO, was registered proprietor of two trade marks (UMBRO Trade Marks), used as logos on football boots in UK since 1987 – Since 2018 Dream Pairs sold variety of footwear branded with logo (DP Sign) in UK via Amazon and eBay –  

Iconix claimed Dream Pairs infringed UMBRO Trade Marks using DP Sign on footwear, breaching s10(2) Trade Marks Act 1994 –  

Iconix claimed DP Sign similar to UMBRO Trade Marks and likely to cause confusion on public’s part – HC dismissed Iconix’s claim – Said “a very low degree of similarity” between UMBRO Trade Marks and DP Sign and no likelihood of confusion – CA allowed Iconix’s appeal – Said HC judge’s conclusion irrational when DP Sign viewed from any angle other than square-on – CA assessed similarity and confusion for itself – Said “a moderately high level of similarity” between UMBRO Trade Marks and DP Sign in post-sale context, particularly when DP Sign was viewed on football boot by viewer standing nearby and looking down – Also said likelihood of confusion on part of significant proportion of consumers – Dream Pairs appealed to SC -

SC unanimously  allowed appeal – Rejected Dream Pairs' arguments regarding realistic post-sale circumstances – However, CA not justified in substituting its view regarding confusion in place of trial judge – Appeal allowed.

Successful appeal from Federal CA – Concerned right to challenge removal order before Immigration Appeal Division (IAD) of Immigration and Refugee Board – Removal order official decision requiring someone leave Canada – IAD special administrative appeal body designated to hear matters such as appeals of removal orders – Under s 63(2) Immigration and Refugee Protection Act (IRPA), foreign national could appeal order if they “hold” permanent resident visa – Court asked to clarify when foreign national had to hold visa to have right to appeal removal order – 

In 2018, P entered Canada from Albania with permanent resident visa as accompanying dependent child of father – To be considered accompanying dependent child, person had to be unmarried – At border, P disclosed recently married, meaning no longer met criteria of dependent child – Canadian immigration rules required change in marital status be reported before entry into Canada – Due to marital status, P could not be granted permanent resident status as dependent child, instead admitted into country for further investigation – When entering Canada, P held valid permanent resident visa – However, visa expired before investigation ended –  

P had admissibility hearing (hearing to decide if person allowed to stay in Canada or not) nine days after visa expired – Hearing resulted in removal order issued barring her entering Canada – P appealed decision to IAD, but unsuccessful – IAD said P had no right to appeal removal order without visa at time removal order issued, by that time, hers had expired – According to IAD’s interpretation, it lost jurisdiction to hear appeal – On judicial review, Federal Court said IAD could reasonably conclude did not have jurisdiction to hear P’s appeal given visa expired before removal order made – Federal CA agreed –  

SC majority allowed P’s appeal, set aside previous decisions, and remitted matter to IAD for determination – Said unreasonable for IAD to rule did not have jurisdiction – Said reasons lacked internal rationality and demonstrated failure of justification, based on relevant precedents, applicable principles of statutory interpretation and potential impact of decision on P – Said only reasonable interpretation of s 63(2) was: point in time which person must hold visa in order to access right of appeal against removal order under s 63(2) was time of arrival in Canada – Accordingly, P had right to appeal removal order to IAD because was holder of permanent resident visa when entered Canada – Appeal allowed.