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Income tax

Administration and enforcement

Combination of errors led Tax Court judge to strike affidavit absent justification

C Co made settlement offer which included schedule of C Co’s losses. Counsel communicated over period of approximately eight months in course of which various matters were finalized. They concluded minutes of settlement which incorporated schedule. In January 2015, counsel advised Tax Court of Canada that they had reached settlement and were awaiting issuance of notices of reassessment to implement settlement agreement. Shortly thereafter, counsel for Minister of National Revenue advised that Minister was having difficulty implementing minutes of settlement and in February 2015, Minister’s counsel advised that Minister determined that there were no non-capital losses available to C Co and that Minister could not issue reassessment that was contrary to provisions of Income Tax Act. Following case management proceedings in Tax Court of Canada, counsel for C Co filed notice of motion and supporting affidavit seeking to have settlement enforced. Deponent was lawyer in C Co’s counsel’s firm and affidavit set out events leading up to filing of motion by reference to series of documents which were made exhibits to the affidavit, together with references to small number of contacts between counsel. Counsel for Minister cross-examined lawyer on her affidavit and lawyer and counsel for C Co took position that lawyer was not at liberty to disclose any information on basis of privilege. Lawyer would not confirm or deny existence of losses claimed in schedule or whether or not she was counsel for C Co. Minister moved successfully to have affidavit struck. C Co appealed. Appeal allowed. Tax Court judge erred in principle in concluding prematurely that contents of affidavit were tendered in proof of their contents. This error led to further errors as to scope of cross-examination of lawyer on her affidavit and appropriateness of her affirming her affidavit. Combination of errors led Tax Court judge to strike affidavit absent justification, which was palpable and overriding error.

CBS Canada Holdings Co. v. R. (2017), 2017 CarswellNat 1315, 2017 FCA 65, J.D. Denis Pelletier J.A., Donald J. Rennie J.A., and J. Woods J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 1104, 2016 TCC 85, K. Lyons J. (T.C.C. [General Procedure]).


Income tax

Administration and enforcement

Judge held that Rule 58 hearing should not be used as substitute for full hearing

Determination of question. Minister of National Revenue issued reassessments against taxpayer for taxation years 2000 through 2007 outside normal reassessment periods in relation to taxpayer’s reporting of income and loss from foreign currency trading activities. Taxpayer’s appeal involved issue relating to possibility of reassessments being statute-barred. Taxpayer brought motion, pursuant to R. 58 of Tax Court of Canada Rules (General Procedure), for determination of question of whether taxpayer’s reporting was attributable to neglect, carelessness, or wilful default within meaning of s. 152(4)(a)(i) of Income Tax Act. Tax Court judge dismissed motion and concluded that issue of whether reassessments were statute-barred (statute-barred issue) should be decided in course of trial and not on preliminary basis. Judge found that it would be difficult to address question of misrepresentation in returns, and whether it was attributable to neglect, carelessness or wilful default, without full hearing that addressed all issues raised in pleadings. Judge held that Rule 58 hearing should not be used as substitute for full hearing simply because evidentiary issues could be addressed in order. Taxpayer appealed. Appeal dismissed. Judge made no reversible error in dismissing motion. There was no palpable and overriding error in concluding that taxpayer’s suggested approach to evidence would not provide fair and just adjudication of statute-barred issue. It was open to judge to conclude that proceeding under R. 58 of Rules would not be appropriate. 

Paletta v. R. (2017), 2017 CarswellNat 567, 2017 FCA 33, Pelletier J.A., Rennie J.A., and Judith M. Woods J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 3148, 2016 TCC 171, John R. Owen J. (T.C.C. [General Procedure])

Criminal Law

Post-trial procedure

Release pending appeal

Bail pending appeal for person convicted of murder was not restricted by Parliament

Accused was convicted of second degree murder of his father. Appeal judge dismissed accused’s application for release pending his appeal under public interest criterion in s. 679(3)(c) of Criminal Code. Court of Appeal review panel dismissed accused’s application for review under s. 680(1) of Code and found no material error or unreasonableness in appeal judge’s decision. Accused appealed. Appeal allowed. Appeal was heard on merits despite mootness. Guidance was given on public interest criterion and on standard of review by review panel. Detaining accused on public interest criterion was unwarranted in circumstances. Appeal judge made material legal error that affected outcome, and review panel erred in failing to intervene. Aside from seriousness of offence, accused presented as ideal candidate for bail. Parliament did not restrict availability of bail pending appeal for persons convicted of murder. Appeal judge found that there were no public safety or flight risk concerns and that grounds of appeal were arguable. Appeal judge overlooked important finding made by trial judge, that accused’s crime gravitated toward offence of manslaughter, which reduced his degree of moral blameworthiness, attenuating seriousness of crime and enforceability interest. Cumulative effect of considerations favoured release. Appeal judge erred by not applying correct test of “not frivolous” in assessing strength of accused’s appeal by wanting something more than clearly arguable grounds of appeal. 

R. v. Oland (2017), 2017 CarswellNB 115, 2017 CarswellNB 116, 2017 SCC 17, 2017 CSC 17, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellNB 126, 2016 CarswellNB 127, 2016 NBCA 15, J. Ernest Drapeau C.J.N.B., M.E.L. Larlee J.A., and Kathleen A. Quigg J.A. (N.B. C.A.).

Criminal Law

Charter of Rights and Freedoms

Charter remedies [s. 24]

Police entry into accused’s residence was not justified by exigent circumstances

Officers saw handguns and drugs in plain view after being invited into apartment, and obtained search warrant. Trial judge concluded that police had grounds to obtain search warrant and since it was impracticable to obtain search warrant exigent circumstances under s. 11(7) of Controlled Drugs and Substances Act existed. Accused was convicted of possession of drugs, possession for purpose of trafficking, and unlawful possession of firearms. Accused’s appeal on ground that trial judge erred in admitting evidence was dismissed. Accused appealed to Supreme Court of Canada. Appeal allowed. Police entry into the accused’s residence not justified by exigent circumstances making it impracticable to obtain warrant. Nature of Charter-infringing state conduct was sufficiently serious to favour exclusion of evidence obtained as a result. Importance of ensuring that such conduct is not condoned by court favoured exclusion. If situation was not serious enough to arrest and apply for warrant, then not serious enough to intrude into private residence without warrant. 

R. v. Paterson (2017), 2017 CarswellBC 687, 2017 CarswellBC 688, 2017 SCC 15, 2017 CSC 15, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Brown J. (S.C.C.); reversed (2015), 2015 CarswellBC 1256, 2015 BCCA 205, Lowry J.A., Frankel J.A., and Bennett J.A. (B.C. C.A.).

Criminal Law

Pre-trial procedure

Disclosure of evidence

Temporary publication ban over certain material was appropriate

Justice issued production order directing media company and reporter to produce certain documents and data pertaining to communications with or concerning accused, individual charged but not arrested yet for six terrorism offences and who was believed to have left Canada to join ISIS in Iraq or Syria. Reporter wrote and published three articles for media company about accused’s involvement with ISIS. Articles were based in large part on communications between reporter and accused through text messaging service. Applicants’ application for order setting aside sealing order was dismissed. Trial judge found sealing order to remain in force for two weeks to permit parties to exercise right of appeal after which access would be permitted to copy of Information to Obtain (ITO) that had been redacted to prevent disclosure of information that was subject to national security claims, information that could disclose identity of specific person and information contained in paragraphs relating to investigative procedures. Trial judge found accused knew before he left Canada that he was under investigation by Canadian security authorities such that there was little risk accused would alter his behaviour on social media. Trial judge found police ought not to be required, as part of price of obtaining production order, to publicly disclose investigative steps that they proposed to take in future. Trial judge found information regarding two individuals was not redacted as those individuals were already well known to media and because far from suggesting that these two persons had any kind of connection to, involvement with or sympathy for terrorists or terrorism, contents of relevant paragraphs clearly demonstrated opposite. Trial judge found information regarding another individual was redacted as they were in different position and had told officer that if they had known that their identity would be made public at this stage of process, they would not have talked to police. Trial judge found that person’s implicit concern for safety was reasonable concern. Trial judge found publication of portions of the ITO concerning accused’s alleged involvement with ISIS and setting forth statements he was alleged to have made would put his right to fair trial in jeopardy, not only because of potential impact of that information on impartiality of jury but also because of its capacity to stigmatize him. Trial judge found based on binding jurisprudence it was not open to accept that as matter of principle allowing access but prohibiting publication was not reasonable alternative. Applicants appealed. Appeal allowed in part. Reasonableness was proper test when considering constitutionality of order. More interventionist standard of review should not be applied when media is target of order. Trial judge made no misapprehension of evidence, considered relevant factors, and made no extractable legal error. Balancing of competing interests favoured making production order. Trial judge took into account possible chilling effect and noted that source did not request confidentiality. Crown not required to show that material sought essential to prosecution. When production orders or search warrants are issued, often there is no prosecution underway and investigation is in formative stage, so that what is necessary to prove case is not known. Reasons for redacting identity of specific individual were reasonable. Certain matters of police procedure should not have been redacted as they steps were obvious. Temporary publication ban over certain materials was appropriate, and parties invited to make further submissions regarding which material should be subject to ban. Temporary order had less deleterious effect on open court principle.
R. v. Vice Media Canada Inc. (2017), 2017 CarswellOnt 3901, 2017 ONCA 231, Alexandra Hoy A.C.J.O., Doherty J.A., and B.W. Miller J.A. (Ont. C.A.); varied (2016), 2016 CarswellOnt 4901, 2016 ONSC 1961, MacDonnell J. (Ont. S.C.J.).

Criminal Law

Post-trial procedure
Appeal from conviction or acquittal

Accused’s appeal from conviction for forgery and fraud was dismissed

Accused was bookkeeper/accountant for large company. In eight-week period 97 cheques, totalling over one million dollars, were issued with forged signature of company’s vice president. Accused was convicted of forgery and fraud. Accused appealed conviction on basis, inter alia, that verdict was unreasonable. Appeal dismissed. Basis of grounds of appeal was complainant’s evidence that he agreed he signed some cheques to fraudulent payees during period when forged cheques were all signed. Accused submitted that trial judge was not entitled to discount that evidence and explain why he did not accept it, but had to treat it as raising reasonable doubt and require Crown to rebut defence of complicity. Trial judge thoroughly reviewed evidence and analyzed in particular accused’s credibility in light of that testimony. He concluded that in light of rest of complainant’s evidence and whole of evidence, evidence could be explained by passage of time, witness’ anger at being defrauded, and language difficulties. There was no error in trial judge’s approach. He was entitled to accept all or some of witness’ evidence. He gave clear reasons for his conclusions. His findings were accorded deference. There was no basis on which to set aside verdict.
R. v. Atwal (2017), 2017 CarswellOnt 3919, 2017 ONCA 228, K. Feldman J.A., K. van Rensburg J.A., and G. Pardu J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 10648, 2015 ONSC 4425, Hill J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 9515, 2016 ONSC 3668, Hill J. (Ont. S.C.J.).

Civil Practice and Procedure

Limitation of actions
Real property

Plaintiff failed to show that their predecessor in title established adverse possession

Defendant owned vacant lot adjacent to plaintiffs’ lot. Both lots were converted to land titles in 2001. Defendant listed its lot for sale. Plaintiffs brought action for declaration that they owned portion of defendant’s lot (“disputed lands”) through adverse possession. Action was dismissed. Plaintiffs failed to show that their predecessors in title (H) established adverse possession over disputed lands prior to conversion to land titles, or that H’s acts of possession had intention of and effectively excluded true owner from possession. Trial judge found that use of defendant’s lot by H was seasonal and intermittent at best, which did not meet requirement of being constant and continuous, so there was no actual possession of disputed lands. Plaintiffs appealed. Appeal dismissed. It was clearly arguable that H’s use of disputed lands was sufficient to establish actual possession. However, plaintiffs’ claim failed on second branch of test for adverse possession, as they failed to show that H intended to use disputed lands in manner inconsistent with right of true owner to possession. H testified that he completed fence that enclosed disputed lands in belief that they were part of his property, and that he built concrete steps and two sheds on disputed lands. Mutual mistake could not be established on record; nor could argument of unilateral mistake by H be supported. It was open to trial judge to consider agreement of purchase and sale and statutory declaration when plaintiffs purchased their lot in rejecting H’s evidence that he believed he owned disputed lands. Trial judge’s conclusion that H knew he had no claim to defendant’s lot was not palpable and overriding error.
Sipsas v. 1299781 Ontario Inc. (2017), 2017 CarswellOnt 4409, 2017 ONCA 265, Alexandra Hoy A.C.J.O., M.L. Benotto J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 1572, 2016 ONSC 212, Hood J. (Ont. S.C.J.).

Civil Practice and Procedure


Costs of appeals

Quantum of costs had to reflect divided success

Applicant owners purchased lakefront property, across which ran above-ground pipe drawing water from lake for respondent neighbours’ property pursuant to “water pipe easement” document executed by predecessors in title. Neighbours entered into owners’ property without permission on basis that pipe was leaking and had to be repaired. Owners’ application for declaration that easement was invalid was dismissed and neighbours’ counter-application for declaration of subsisting easement was granted on terms allowing them to bury new water line within boundaries of easement. Owners’ appeal was allowed in part, to vary declaration to limit easement to leaving existing pipeline in present position and allowing neighbours to make only those repairs to which owners agreed in advance. Costs submissions received. Owners awarded costs in amount of $8,000. There were no unusual circumstances justifying departure from usual approach of setting aside order for costs below. As appeal was allowed only in part, it did not automatically follow that owners were entitled to full costs of proceedings below. Quantum of costs had to reflect that there was divided success. Owners enjoyed greater success as they succeeded on issues that drove proceedings below, namely whether neighbours could enter onto their lands without their prior permission to repair pipeline and whether neighbours had right to replace existing pipeline. Owners’ suggestion about neighbours’ conduct, namely that there was no leak in pipeline, was based on correspondence that arose after conclusion of proceedings and which had not been tested in crucible of litigation. Meaning to be taken from correspondence was disputed and record would not support credibility findings necessary to resolve dispute so as to find reprehensible behaviour warranting sanction of costs.
Mihaylov v. 1165996 Ontario Inc. (2017), 2017 CarswellOnt 3741, 2017 ONCA 218, Eileen E. Gillese J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.); additional reasons (2017), 2017 CarswellOnt 1653, 2017 ONCA 116, E.E. Gillese J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.).

Labour and Employment Law

Labour law

Discipline and termination

Conclusion that workers did not voluntarily leave their employment was reasonable

It was employer’s practice to artificially create seasonal jobs for plant’s operations; two teams of employees would share work over six-month periods. This was embodied in letter of agreement signed in 2001 between union and employer. Fourth clause of agreement provided that, at time of team changes, employees could not exercise their right to displace according to seniority provided for in art. 9.09 of collective agreement. During “rest period”, employees, including workers, claimed and benefited from employment insurance benefits. This practice was uninterrupted for 13 years until in 2012, when Service Canada advised employer that when employee did not exercise seniority right, situation constituted voluntary departure. Record of Employment issued by employer indicated lack of work as cause of departure. Employment Insurance Commission (Commission) denied workers employment insurance benefits on basis of voluntary departure. As soon as workers were informed that letter of agreement was no longer valid as of February 2013, workers asserted their right to displace, returned to work, and appealed Commission’s decision. Board of Referees allowed appeal against Commission’s decision. Commission’s appeals following decision were dismissed by Social Security Tribunal Division Appeal (DA). DA concluded that, light of particular circumstances of case, workers by did not voluntarily leave their employment. Attorney General brought application for judicial review. Application dismissed. DA’s findings of fact were reasonable as they were based on evidence heard and other documentary evidence on record. DA was reasonable to conclude that workers did not choose to refuse to work in order to allow other employees to work in their place, given absence of evidence before Board of Referees that workers we previously notified by their employer, and union of cancellation of letter of agreement signed in 2001. DA did not have to determine whether workers were justified in leaving their jobs. Any employee, who, having regard to his or her seniority, was entitled to work but chose to allow another employee to work, voluntarily left his or her employment and did not establish justification under law.
Canada (Procureur général) c. Joncas (2017), 2017 CarswellNat 1032, 2017 CAF 57, Johanne Gauthier J.A., A.F. Scott J.A., and Yves de Montigny J.A. (F.C.A.).




Affidavit did not properly fall within exception afforded to experts

Applicant Members of Parliament (MPs) applied to challenge decisions by Board of Internal Economy about their large-volume mailings and use of Parliamentary resources for expenses. Respondent Board and Speaker of House of Commons brought motion to strike out applications on basis that matters were within exclusive purview of House of Commons protected by doctrine of parliamentary privilege. MPs served affidavit of law professor, opining on international global trend of construing parliamentary privilege narrowly. Respondents’ motion to strike out affidavit was dismissed, and their appeal dismissed. Respondents appealed. Appeal allowed. Law professor’s affidavit did not provide evidence that was necessary to enable judge to appreciate matters in issue due to their technical nature as foreign laws and authorities referred to were not factual issues requiring proof. Courts routinely relied on foreign case law and doctrine without need for their introduction by way of affidavit. Affidavit’s essential character was not to offer historical perspective into concept of parliamentary privilege but to suggest restrictive interpretation on basis of legal analysis of foreign constitutional provisions and authorities. Affidavit advocated for more restrictive interpretation of that privilege in light of recent developments in foreign law and practice. Affidavit was inadmissible and did not properly fall within exception afforded to experts. While discretion to strike out affidavits should be exercised sparingly, affidavit was not properly accepted for filing. Affidavit was so clearly inadmissible there was no need to have full record before coming to final assessment of its merits. It was in interests of justice to intervene at this early stage. Respondents would be materially prejudiced and orderly hearing of application would be impaired if affidavit was not struck immediately. Delay in bringing motion to strike out affidavit was not fatal as court should not decline to strike out affidavit that was clearly inadmissible merely because motion to that effect was not brought as quickly as it should have been.
Canada (Board of Internal Economy) v. Canada (Attorney General) (2017), 2017 CarswellNat 660, 2017 FCA 43, A.F. Scott J.A., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 2996, 2016 FC 745, George R. Locke J. (F.C.).
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