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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Trustee’s application for judicial review was dismissed

EB made assignment of property to trustee under Bankruptcy and Insolvency Act (Can.). EB reported liabilities of $94,652 all of which were debts to credit card companies. R.C.M.P. were informed that EB was preparing to declare bankruptcy and leave country with more than $10,000 in his possession. At airport, on his way to Turkey, EB was stopped by CBSA customs officers. Search revealed that EB had equivalent of CAD 53,157.83, in various currencies. Funds were seized. Minister of Public Safety and Emergency Preparedness declined return of funds seized and forfeited by customs officers from EB in accordance with Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.). Trustee unsuccessfully brought application for judicial review. Trustee appealed. Appeal dismissed. Minister’s discretion was limited. Only question that arose under s. 29 of act was whether evidence confiscated could establish that it was not criminal offence.
Bouloud c. Canada (Ministre de la Sécurité publique et de la Protection civile) (Feb. 8, 2016, F.C.A., Marc Noël C.J., Scott J.A., and de Montigny J.A., A-116-15) Decision at 126 W.C.B. (2d) 371 was affirmed. 129 W.C.B. (2d) 542.

Administrative Law

Judicial review

Canadian Radio-television and Telecommunications Commission could focus on broader evidence

Appellants were appealing 2015 Wholesale Code decision of Canadian Radio-television and Telecommunications Commission (CRTC). Nine documents were in dispute, and appellant said they were not admissible because not before CRTC, but respondent wanted them admitted. Motion by appellant to set contents of appeal book. Motion granted in part. Admissibility ruling appropriate at this stage as it would allow hearing to proceed in more timely, ordinary fashion. Appellant was interpreting general rule too literally. CRTC operated in ongoing regulatory context, and continually saw same parties on related issues, so could focus on broader evidence, subject to procedural fairness. Past proceedings and regulatory experience could form part of data to draw on. There was at least a case for saying administrative decision maker drew on such data, and seven documents were admissible on that basis, as court may not be able to properly assess decision without them. Two documents, however, post-dated CRTC decision and there was no evidence agenda or policies within pre-dated decision, so these documents were inadmissible.
Bell Canada v. 7262591 Canada Ltd. (Apr. 20, 2016, F.C.A., David Stratas J.A.,
A-51-16) 266 A.C.W.S. (3d) 79.

Aboriginal Peoples

Crown relationship

There was no basis for federal court jurisdiction over duty to consult claim against province

Treaty Number 4 (“treaty”) of 1874 required Crown to provide First Nation with specified amount of land. There was shortfall in amount of reserve land provided to First Nation. In 1993 Crown and First Nation concluded Saskatchewan Treaty Land Entitlement Framework Agreement, which created framework for fulfillment of Crown’s outstanding obligation under treaty. First Nation concluded settlement agreement with Canada and province (“PFN settlement agreement”). First Nation brought action asserting respondents violated PFN settlement agreement. Province’s motion to strike action as against it was dismissed. Province appealed. Appeal allowed in part. Portions of statement of claim alleging province breach duty to consult with First Nation with respect to mining project was struck with leave to amend. Federal Court possessed jurisdiction over portions of claim that alleged breach of province’s obligations under PFN settlement agreement. Portion of claim that alleged violation by province of its duty to consult with First Nation with respect to grant of subsurface lease for mining project fell outside jurisdiction of Federal Court. Attornment clause in PFN settlement agreement was sufficient to ground jurisdiction in Federal Court to interpret and enforce PFN settlement agreement. Portions of First Nation’s action seeking to have Federal Court interpret and enforce PFN settlement agreement dealt with treaty land entitlement settlement, and insofar as First Nation sought to enforce rights to additional reserve lands, these portions of action concerned federal common law and were intimately connected with Indian Act (Can.). Section 17(3)(b) of Federal Courts Act (Can.) was attributive of jurisdiction and afforded jurisdiction to Federal Court. Section operated not only to oust jurisdiction of provincial superior courts in cases where there was concurrent jurisdiction but also conferred jurisdiction upon Federal Court and ousting provincial jurisdiction in situations where federal Crown and other parties to action agreed in writing that issue would be brought before Federal Court for determination. There was no basis for Federal Court jurisdiction over duty to consult claim against province as province did not attorn to jurisdiction of Federal Court. Claim with respect to mining project were distinct from claims that related to PFN settlement agreement and attornment clause in PFN settlement agreement did not apply. Pelletier J.A. wrote concurring reasons finding there was support for jurisdiction on stand-alone basis.
Saskatchewan (Attorney General) v. Pasqua First Nation (Apr. 29, 2016, F.C.A., J.D. Denis Pelletier J.A., D.G. Near J.A., and Mary J.L. Gleason J.A., A-11-15) 266 A.C.W.S. (3d) 100.

Customs and Excise


Canadian International Trade Tribunal’s reasons were transparent, intelligible, and justified

Canadian International Trade Tribunal (CITT) found that seven models of B’s washers and dryers, were not entitled to duty-free treatment under tariff item No. 9979.00.00 because they were not goods specifically designed to assist persons with disabilities. B appealed. Appeal dismissed. CITT did not adopt test not authorized by law in referring to U.S. legislation as B submitted that U.S. standards were relevant to CITT’s assessment of design characteristics of goods. CITT did not substitute U.S. standards for “specifically designed” test mandated by Tariff. Assuming Tribunal erred in its interpretation of the high forward reach and high side reach standards, this did not render decision unreasonable. Without pedestal lower door height standard was not met. Any incorrect inference drawn by CITT did not undermine analysis that goods were not U.S. standard compliant. Section 68(1) of Customs Act (Can.) restricts appeals from CITT to Federal Court to appeals on question of law and drawing of unsound inference not an error of law. CITT did not base its decision on standard practice without considering facts of case so no fettering of discretion. Once B failed to demonstrate full compliance, CITT not required to consider partial compliance. Jurisprudence well-settled that an administrative decision-maker need not address every argument raised by parties. CITT’s reasons were transparent and intelligible and justified on record before it. Decision fell within range of possible acceptable outcomes defensible in light of evidence and law.
BSH Home Appliances Ltd. v. Canada (Border Services Agency) (Apr. 29, 2016, F.C.A., Eleanor R. Dawson J.A., D.G. Near J.A., and Yves de Montigny J.A., A-32-15) 265 A.C.W.S. (3d) 921.



Motions for leave to intervene in appeal dismissed

AMI and TTA brought motions for leave to intervene in appeal. Motions dismissed. Proposed interveners were not directly affected by outcome. Absence of interveners would not stop court from deciding appeal. AI’s submissions on international law issues were not sufficiently relevant and material to issue in appeal. Proposed intervener would not assist court on central issue in appeal. If intervention were permitted there would be further delay exposing applicants to more of sort of harm they allege in their motion. TTA would not offer different perspective on issues in appeal and proposed submissions would substantially duplicate those of appellants.
Prophet River First Nation v. Canada (Attorney General) (Apr. 20, 2016, F.C.A., David Stratas J.A., A-435-15) 265 A.C.W.S. (3d) 833.


Income tax

No ground to interfere with reasoning of Federal Court judge or result reached

Taxpayer applied for relief under s. 152(4.2) of Income Tax Act (Can.), alleging that he was United States resident until June 2001 such that he was not liable for Canadian tax in 2000 taxation year and also that he was entitled to claim rental expenses for taxation years 2000, 2001, and 2002. Much of evidence relevant to these allegations had been sought from taxpayer several years earlier during audit, when taxpayer did not supply enough evidence to satisfy Minister on these points. Taxpayer’s application, submitted without any supporting documents, was denied. Taxpayer’s application for second-level relief, supported by some documents, was denied. Minister’s delegate concluded that minimal evidence submitted was insufficient to establish claim for relief and that application was attempt to circumvent normal objection and appeals process. Taxpayer’s application for judicial review was dismissed. Taxpayer appealed. Appeal dismissed. Federal Court judge found that Minister’s fact-based discretionary decision was acceptable and defensible on applicable law and on evidence submitted. Federal Court judge also rejected submission that Minister improperly fettered discretion by use of non-binding policy statement. Taxpayer did not establish that there was any ground to interfere with reasoning of Federal Court judge or result reached.
Ford v. Canada (Attorney General) (Apr. 26, 2016, F.C.A., Dawson J.A., David Stratas J.A., and Near J.A., A-441-15) Decision at 256 A.C.W.S. (3d) 987 was affirmed. 265 A.C.W.S. (3d) 812.

Criminal Law

Proceeds of crime

“Actual possession” in Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.), means actual, physical possession, not ownership

Appellant plaintiff and wife were catching flight to Caribbean when intercepted by Canada Border Services Agency officer. Appellant told officer they did not have cash in amount of CAD$10,000 or more. Search revealed that appellant was carrying $13,820.99. Officer seized funds and penalized appellant $2,500 before letting him leave with balance of funds. Appellant believed that he did not need to declare money since he and wife jointly owned it. Minister of Public Safety and Emergency Preparedness’s delegate affirmed officer’s decision that s. 12(1) of Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.) had been violated and penalty was appropriate. Appellant appealed from decision. Federal Court found that “actual possession” meant possession, not ownership, and also dismissed defence of officially induced error. Federal Court dismissed appeal. Appellant appealed from Federal Court decision. Appeal dismissed. Pursuant to Act and s. 2 of Cross-border Currency and Monetary Instruments Reporting Regulations (Can.) traveller leaving Canada in “actual possession” of CAD$10,000 or more must declare currency. “Actual possession” in Act, in particular s. 12(3)(a) of Act meant actual, physical possession, not ownership. Appellant had actual, physical possession of currency, which exceeded CAD$10,000. Furthermore, factually-suffused conclusion could only be set aside on basis of palpable error, namely that error was “obvious” and “went to very core of outcome of case” which was not case here.
Wise v. Canada (Minister of Public Safety and Emergency Preparedness) (Apr. 6, 2016, F.C.A., David Stratas J.A., Webb J.A., and Gleason J.A., A-521-14) Decision at 246 A.C.W.S. (3d) 380 was affirmed. 265 A.C.W.S. (3d) 379.

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A Law Times column examines whether the Law Society of Upper Canada should change its name to the Law Society of Ontario, in light of different social changes, such as the Truth and Reconciliation Committee’s Calls to Action. Should LSUC change its name?
Yes, it’s time for LSUC to catch up with the times, and update its name.
No, the name of the LSUC is appropriate, and changing it would not accomplish much.