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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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Tax

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]).

Tax

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])

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.).

Evidence

Opinion

Experts

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.).

Constitutional Law

Charter of Rights and Freedoms

Nature of rights and freedoms

S. 18(1) of Agriculture and Agri-Food Administrative Monetary Penalties Act was not unconstitutional

Applicant was part of pork production conglomerate involved in production line, slaughter and transport of pigs. Applicant requested revision of 12 notices of violation issued by Canadian Food and Inspection Agency related to transportation of animals in manner that caused undue suffering during journey. Due to high fines in spite of all precautions taken during journey, applicant could not make ends meet. Applicant unsuccessfully challenged constitutionality of s. 18(1) of Agriculture and Agri-Food Administrative Monetary Penalties Act on basis that it violated s. 7 of Canadian Charter of Rights and Freedoms. Applicant brought application for judicial review. Application dismissed. Purpose of Act was to ensure compliance with food legislation and did not aim to punish offenders. Applicant was not person charged under provision insofar as Act is not intended to right wrong done to society but to ensure implementation of regulation of activities in agriculture and agribusiness. It was not demonstrated that regime jeopardized applicant’s economic viability or plunged applicant into state of psychological distress related to fear for their health. Amount of fine was determined by taking into account history of each offender for previous violations or offenses, nature of negligence and harm done in accordance with regulations.
Mario Côté Inc. c. Canada (Procureur général) (2017), 2017 CarswellNat 517, 2017 CAF 36, Johanne Gauthier J.A., Yves de Montigny J.A., and Mary J.L. Gleason J.A. (F.C.A.).

Labour and Employment Law

Public service employees

Appeal and judicial review

Applicant’s request for reconsideration was doomed to fail

On direction of Public Service Labour Relations Board resolving union’s unfair labour complaint, union and public service employer reached agreement that employees’ home contact information would be disclosed to union and this was incorporated into Board order. Applicant, who was dues-paying member of bargaining unit but not union member, took position that disclosure of her home contact information to union violated her privacy rights. Applicant’s application for judicial review was allowed, and she was granted intervenor status on redetermination that confirmed disclosure with provisions added. Applicant’s application for judicial review was dismissed and appeal to Supreme Court of Canada (SCC) was dismissed. Applicant’s request for reconsideration was refused by Board. Applicant applied for judicial review. Application dismissed. Board reasonably determined that applicant’s proposed “new” evidence, relating to federal legislative history surrounding issues of strike votes, final-offer votes and disclosure of home contact information, would not have material effect on outcome. Proposed evidence was not actually new as it had been publicly available for years. Board reasonably concluded that applicant was seeking to reopen SCC’s judgment on this matter, which definitely addressed her long-standing concern with disclosure of her home contact information to union. This concern remained at core of reconsideration request. Board considered relevant factors of importance of finality of its decisions, length of and explanation for delay, and absence of new evidence. Applicant’s request for reconsideration was doomed to fail in light of deficiencies of her proposed evidence and SCC precedent. Fact that presiding Board member had prior affiliation with different federal public service union did not raise reasonable apprehension of bias.
Bernard v. Canada Revenue Agency (2017), 2017 CarswellNat 659, 2017 FCA 40, J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and David G. Near J.A. (F.C.A.); application for judicial review refused (2015), 2015 CarswellNat 3417, 2015 CarswellNat 3418, 2015 PSLREB 59, 2015 CRTEFP 59, Kate Rogers Member (Can. P.S.L.R.E.B.).

Professions and Occupations

Barristers and solicitors

Relationship with client

Motion for removal of law firm was dismissed

In 2008 plaintiffs sought representation in respect of Canadian patent pending and possible infringement claim. One of plaintiffs, CS, contacted lawyer at law firm. Lawyer informed CS that he would have to complete standard conflict check. Lawyer informed CS that he could not act for plaintiffs due to conflict of interest. Lawyer provided CS with recommendations as to potential law firms to represent plaintiffs. Law firm was later appointed as solicitors of record for defendants in ongoing matter opposing parties. In 2015, plaintiffs brought motion for removal of law firm on basis of 2008 interactions between CS and lawyer. Prothonotary dismissed motion. Federal Court dismissed plaintiffs’ appeal. Plaintiffs appealed. Appeal dismissed. Prothonotary found lawyer established that no information was imparted which could be relevant to underlying dispute. Although lawyer could not recall in detail seven year old conversation, prothonotary found that he was seasoned lawyer accustomed to his firm’s conflict of interest review procedure. His handwritten notes taken during phone call corroborated his position that no advice or counselling was given or sought, and that information given was general in nature. Prothonotary’s conclusion was open to him on evidence provided.
Sikes v. EnCana Corp. (2017), 2017 CarswellNat 444, 2017 FCA 37, Marc Noël C.J., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 2708, 2016 FC 671, B. Richard Bell J. (F.C.).
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