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Tax

Administration and enforcement

Validity of tax assessments must be adjudicated by Tax Court of Canada

In 2011, Minister of National Revenue sent notice of assessment to individual for outstanding GST. In July 2015, CRA issued requirement to pay. In September 2015, individual claimed that he filed notice of objection. In October 2015, individual filed statement of claim under Simplified Action Rules of Federal Court seeking declaration that requirement to pay was null and void contrary to Indian Act, Treaty No. 8 and Constitution Act, and for damages for amounts seized pursuant to requirement to pay. Pursuant to judgment by Federal Court (FC), individual’s statement of claim was ordered struck without leave to amend on basis that claim disclosed no reasonable cause of action. Individual appealed. Appeal dismissed. In current case, FC held that essential character of individual’s claim was indirect challenge to validity of his 2011 tax reassessment. Such characterization did not amount to palpable and overriding error. Even though individual’s case was cast as damage claim, only damages sought flowed directly from tax re-assessment and sought reimbursement of monies paid in satisfaction of that re-assessment. Individual’s claim as pleaded was nothing but challenge to validity of tax re-assessment. Constitutional dimension of claim did nothing to alter this claim or to oust Tax Court of Canada’s (TCC) jurisdiction. Cases cited by individual confirmed that questions related to validity of tax assessments must be adjudicated by TCC irrespective of how claim is framed. Motions judge properly characterized claim as being indirect challenge to tax assessment. It was plain and obvious that TCC had exclusive jurisdiction over question.
Horseman v. Canada (2016), 2016 CarswellNat 5555, 2016 FCA 252, Gauthier J.A., Yves de Montigny J.A., and Gleason J.A. (F.C.A.).

Administrative Law

Miscellaneous

Decision to issue notice of compliance was reasonable

Reasonableness. Minister of Health made decision to issue notice of compliance (NOC) to TC Inc. for exemestane tablet, which was generic version marketed by PC Inc.. Minister of Health made decision to issue NOC to HH Inc. for its 100 mg/vial inflixmab powder solution, which was generic version marketed by J Inc. . PC Inc. brought application to challenge issuance of NOC. Federal judge found that standard of review of minister’s decision was correctness, that minister’s interpretation of regulations was incorrect and thus, decision to issue NOC was set aside. J Inc. also brought application to challenge issuance of NOC and on consent of parties, federal judge set aside decision to issue NOC. PC Inc. and J Inc. appealed and appeals were consolidated. Appeal allowed. Federal judge erred by reviewing minister’s decisions on standard of correctness. Applying standard of reasonableness, decision to issue NOC was reasonable. Contextual analysis did not rebut presumption of reasonableness. While regulations were enacted pursuant to Patent Act which fell under Ministry of Industry, not Health, this was too narrow of view of prevailing jurisprudence . Presumption of reasonableness applied when administrative decision-maker was interpreting not just its home statute, but also when decision-maker was interpreting “statutes closely connected to its function” which applied equally to regulations that were closely connected to function of Minister of Health.
Teva Canada Ltd. v. Pfizer Canada Inc. (2016), 2016 CarswellNat 5051, 2016 FCA 248, Eleanor R. Dawson J.A., Wyman W. Webb J.A., and Donald J. Rennie J.A. (F.C.A.); reversed (2014), 2014 CarswellNat 5409, 2014 CarswellNat 7072, 2014 FC 1243, 2014 CF 1243, Mary J.L. Gleason J. (F.C.).

Pleadings

Statement of claim

Action was struck as disclosing no reasonable cause of action

Plaintiff D brought action in Federal Court, claiming right not to work while being afforded reasonable standard of living. Action was struck as disclosing no reasonable cause of action, with this finding being upheld on appeal. D appealed from Federal Court judgment. Appeal dismissed. D’s claim on appeal that she owned share of Consolidated Revenue Fund could not succeed. Previous claims were properly dismissed, as there was no basis in law for them.
Doell v. R. (2016), 2016 CarswellNat 4935, 2016 FCA 235, Gauthier J.A., David Stratas J.A., and Gleason J.A. (F.C.A.).


Civil Practice and Procedure

Class and representative proceedings

Motion for class proceeding certification was dismissed

Plaintiffs were chief and First Nations group, who were subject of treaties made between 1871 and 1921. Members of group received $5 yearly payment, from rate set in 1875. Plaintiffs claimed that lack of adjustment to yearly rate rendered payments meaningless. Plaintiffs moved to have action certified, to include other First Nations under treaties. Motion was dismissed, as Federal Court found there was no common issue. Plaintiffs appealed from dismissal of motion. Appeal dismissed. Federal Court identified proper issues and authorities. Court’s finding that plaintiffs sought relief beyond what was established in caselaw was proper. Different treaties were in place for proposed class members, so that common question was not established. Had scope of action been limited to one treaty, problem would have been avoided.
R. v. Horseman (2016), 2016 CarswellNat 4975, 2016 FCA 238, Johanne Gauthier J.A., David Stratas J.A., and Mary J.L. Gleason J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 5461, 2015 CarswellNat 9094, 2015 FC 1149, 2015 CF 1149, Russel W. Zinn J. (F.C.).


Contracts

Performance and breach

Appellant breached its level of service obligations

Respondent operated grain elevator facilities. Prior to construction of facilities parties entered into confidential contract. For several weeks respondent did not receive all of railcars that it ordered, and no car were delivered for six weeks to any of respondent’s facilities. Canadian Transportation Agency found appellant breached its level of service obligations to respondent for several weeks. Appellant appealed. Appeal dismissed. Agency did not err in its application of s. 113 to s. 116 of Canada Transportation Act. Agency did not err in concluding that appellant could not now complain that respondent’s orders were unreasonable because it agreed to supply number of cars ordered by respondent. Appellant was bound by agreement reached with respondent. Whether confidential contract was confidential contract for purposes of s. 113(4) of Act was not matter that could be appealed under Act. Agency’s interpretation of “Service Unit” as used in confidential contract was not extricable question of law and no appeal lay under Act from the Agency’s interpretation of term. There was no merit to respondent’s argument that it was denied procedural fairness.
Canadian National Railway v. Louis Dreyfus Commodities Canada Ltd. (Sep. 16, 2016, F.C.A., J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and Yves de Montigny J.A., A-140-15) 270 A.C.W.S. (3d) 681.


Civil Procedure

Pleadings

Plaintiff’s legal propositions were incoherent

Plaintiff’s earlier claims before Federal Court were dismissed on basis that statements of claim did not raise any cause of action and were bereft of any chance of success, or that statements of claim had no reasonable prospects of success. Plaintiff appealed. Appeal dismissed. There was no error in those conclusions. Legal propositions put forward by plaintiff were incoherent and devoid of any legal meaning. Plaintiff had assembled words, phrases, and concepts which had some meaning in context in which they were originally found but had none whatsoever in use which he had made of them. Although plaintiff’s claims shared some characteristics attributed to organized pseudo commercial argument (OPCA) litigants, OPCA phenomenon was not threat to orderly administration of justice to present court at current time. Plaintiff and his co-litigants were entitled to be heard but not entitled to blame their lack of success on bad faith and corruption of judges who hear and decide cases and on collusion between lawyers who represent Crown and judges and prothonotaries who heard their cases. Allegations would have consequences if plaintiff were to continue in present vein.
Dove v. R. (Sep. 15, 2016, F.C.A., J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and D.G. Near J.A., A-552-15) Decision at 261 A.C.W.S. (3d) 299 was affirmed. 270 A.C.W.S. (3d) 739.


Communications Law

Broadcasting

Bell was providing telecommunications services in violation of Telecommunications Act (Can.)

Bell Mobility offered live streaming of certain television stations and related programming services to customers, including video-on-demand service, to customers who subscribed to wireless voice plan, data plan or tablet plan, charging customers not for data used but rather for time spent accessing the programs. Respondents filed complaint with Canadian Radio-television and Telecommunications Commission (CRTC), claiming that practice of exempting mobile TV services from data charges gives Bell an unfair advantage and unduly discriminates against their wireless customers and Bell’s competitors. Section 4 of Telecommunications Act (Can.) provides that it does not apply to broadcasting by broadcasting undertaking. CRTC noted that Bell was involved in “broadcasting” but found that functions performed by Bell to establish data connectivity and provide transport over wireless access networks was the same whether content being transported was mobile TV services, other broadcasting services or non-broadcasting services. CRTC also found that data connectivity required to transmit programs can only be established if customer acquires telecommunications service. From customer’s perspective, mobile TV services are accessed in same way such customers access other applications. CRTC concluded Bell was providing telecommunications services in violation of Act. Bell’s appeal dismissed. Exemption applies only “in respect of broadcasting by a broadcasting undertaking”, not all broadcasting. Person who has no control over content of programs and is only transmitting programs for another person, not transmitting such programs as broadcasting undertaking. Bell transmitted its mobile TV programs simultaneously with its voice and other data communications using same network. Transmission of voice and non-program data to customers is not “broadcasting” and Act not applicable. Reasonable result that all transmissions by Bell would be subject to same Act. Reasonable for CRTC to determine that Bell, by transmitting programs as part of network that simultaneously transmits voice and other data content, was merely providing mode of transmission and not acting as broadcasting undertaking.
Bell Mobility Inc. v. Klass (Jun. 20, 2016, F.C.A., Eleanor R. Dawson J.A., Wyman W. Webb J.A., and Donald J. Rennie J.A., A-193-15) 270 A.C.W.S. (3d) 517.


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