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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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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.


Administrative Law

Judicial review

Original decision of adjudicator was owed degree of deference

Appellant was federal employee who filed grievance over his dismissal. Grievance was dismissed and employee applied for judicial review. Application was dismissed. Employee sought to have appeal court set aside dismissal, and grant judicial review. Employee sought to introduce new evidence in doing so. Appeal dismissed. Reasonableness was proper standard of review. Original decision of adjudicator was owed degree of deference, as it involved home statute. Decision of adjudicator was supported by facts and jurisprudence. Interlocutory decisions made against employee were not appealed and were now final. These decisions could not be subject of appeal.
Teti v. Canada (Attorney General) (Mar. 14, 2016, F.C.A., Noël C.J., David Stratas J.A., and Rennie J.A., A-481-14) Decision at 246 A.C.W.S. (3d) 680 was affirmed. 265 A.C.W.S. (3d) 278.


Taxation

Goods and Services Tax

Assessment returned to minister on basis that purchaser was entitled to GST/HST new housing rebate in respect of townhouse

Minister assessed purchaser under Excise Tax Act (Can.), disallowing claimed GST/HST new housing rebate for purchase of townhouse. Purchaser’s appeal was dismissed. Purchaser appealed. Appeal allowed. Tax Court judge found that purchaser intended to use townhouse as her primary place of residence but that she was not entitled to rebate as condition in s. 254(2)(g)(i)(A) of Act was not satisfied because she never occupied property. Tax Court judge erred in law by failing to consider where purchaser qualified for rebate by satisfying s. 254(2)(g)(ii) of Act, which was alternate means for satisfying condition in s. 254(2)(g) of Act. Minister acknowledged that purchaser satisfied s. 254(2)(g)(ii) of Act but argued that purchaser still did not qualify for rebate. Minister argued that Tax Court judge erred in law by relying solely upon purchaser’s evidence about her intent without considering objective manifestations of purpose. Evidence of objective manifestations was adduced by minister through purchaser’s oral testimony, which made Tax Court judge’s reference to “after hearing evidence of purchaser” at least somewhat ambiguous. Applying presumption that Tax Court judge knew and understood applicable law, it was not clear that Tax Court judge made palpable and overriding error in finding purchaser’s testimony sufficiently credible to overcome circumstantial evidence suggesting lack of requisite intent. More troubling was Tax Court judge’s statement during closing argument that he did not need to hear from minister’s counsel but issue of purchaser’s intent was squarely raised in minister’s pleadings and purchaser was cross-examined on minister’s assumptions about intent. Issue of intent was in play such that minister was heard on this issue. Tax Court judge’s judgment would be set aside and judgment that should have been made would be pronounced, with assessment returned to minister on basis that purchaser was entitled to GST/HST new housing rebate in respect of townhouse.
Ranjbar v. R. (Apr. 15, 2016, F.C.A., Eleanor R. Dawson J.A., D.G. Near J.A., and Richard Boivin J.A., A-344-15) 265 A.C.W.S. (3d) 258.


Customs and Excise

Appeal

Canadian International Trade Tribunal did not commit any error in its analysis that “through bill of lading” was required for goods to benefit from General Preferential Tariff treatment

Company purchased 1,678 contained of various sized, made in China. When containers were shipped from China, company did not obtain through bills of lading or any other shipping documents. Canada Border Services Agency (CBSA) determined that containers did not qualify for General Preferential Tariff (GPT) treatment under Customs Tariff (Can.) because they were not shipped from China to Canada on through bill of lading. Canadian International Trade Tribunal dismissed company’s appeal from decision of CBSA. Tribunal did not review documentation that company had obtained after containers were shipped. Company appealed. Appeal dismissed. Company misunderstood that tribunal had accepted its proposed definition of “through bill of lading.” Although tribunal referred to two definitions proposed by company, it did not specifically adopt them in any part of its reasons. Because tribunal found failed to obtain through bills of lading or any other shipping documents, it was not necessary for tribunal to define through bill of lading. There were simply no shipping documents at all, and this was questions of fact and not subject to review on appeal. Tribunal, however did not commit any error in its analysis with respect to determination that through bill of lading was required in order for goods to benefit from GPT treatment.
Containerwest Manufacturing Ltd. v. Canada (President of Border Services Agency) (Apr. 11, 2016, F.C.A., David Stratas J.A., Wyman W. Webb J.A., and Mary J.L. Gleason J.A., A-351-15) 265 A.C.W.S. (3d) 100.


Industrial and Intellectual Property

Trademarks

No palpable and overriding error in judge’s discretionary decision to require delivery up of domain name

Plaintiffs brought trademark action. Federal Court Judge found plaintiffs established they were owners of trademarks and that defendants infringed marks. Plaintiffs were granted default judgment. Defendants appealed. Appeal dismissed. Exercise of discretion to proceed with merits of motion was reasonable. Defendants had ample notice of motion and on return of motion offered only draft statement of defence that was not filed and on which they indicated they would not rely. Corporate defendant did not retain counsel. There was no merit to argument that order was without jurisdiction. No palpable and overriding error was established in judge’s discretionary decision to require delivery up of domain name.
Michaels v. Michaels Stores Procument Co. (Mar. 15, 2016, F.C.A., Noël C.J., Stratas J.A., and Donald J. Rennie J.A., A-256-15) 264 A.C.W.S. (3d) 1019.


Taxation

Income tax

Challenge to amount of tax payable must proceed by way of appeal from assessment or reassessment to Tax Court of Canada

CRA reassessed taxpayer’s 2007 taxation year on basis that taxpayer’s reported capital gain relating to sale of properties made by partnership was business income Reassessment stated that taxpayer’s share of profit was $1,898,828.00, allowed reserve was $919,978.00, and taxpayer’s share of partnership income after taking into account reserve was $978,850.00. CRA’s confirmation of reassessment stated that taxpayer’s share of “profit” was $978,850. Taxpayer requested CRA use profit of $978,850 as stated in confirmation of reassessment, but CRA informed taxpayer that his share of partnership income was as assessed in original reassessment. Taxpayer’s application for judicial review of that decision was dismissed. Trial judge found issue was concerned with manner of how CRA collected taxpayer’s 2007 income tax. Trial judge found Federal Court had jurisdiction over collection matters. Trial judge found taxpayer conceded that CRA’s use of word “profit” in confirmation notice was error by CRA. Trial judge found CRA’s error was not fatal. Trial judge found purpose of notice of confirmation was to confirm findings from original reassessment Error of using term “profit” instead of proper term of “income” was not substantial as to deprive meaning of letter or invite severe misinterpretation. Trial judge found CRA did not err in law in informing taxpayer that his share of partnership’s income was as assessed in original reassessment. Taxpayer appealed. Appeal dismissed. Any challenge to amount of tax payable must proceed by way of appeal from assessment or reassessment to Tax Court of Canada. Appeal constituted collateral attack on reassessment. Argument that notice of confirmation provided legally correct basis of liability for income tax and that Minister’s collection activity was limited to amount owing when assessment was given effect did not succeed.
Karam v. Canada (Attorney General) (Mar. 15, 2016, F.C.A., J.D. Denis Pelletier J.A., Dawson J.A., and Gauthier J.A., A-271-15) Decision at 252 A.C.W.S. (3d) 366 was affirmed. 264 A.C.W.S. (3d) 809.


Industrial and Intellectual Property

Copyright

Federal Court erred in relying on lack of evidence about American law as basis for dismissal of copyright claim

Plaintiff owned and published Indian Punjabi-language daily newspaper called “Ajit Daily.” Bains defendants owned and published Canadian Pubjabi-language newspaper called “Ajit Weekly.” There was litigation between parties over use of Ajit name and partial settlement agreement was reached (PSA). PSA provided for limited license to Bains defendants to use Ajit Daily logo from specified date and for further license to use approved variation of logo under conditions. New York law was to govern PSA. Plaintiff claimed Bains defendants infringed its copyright in Ajit Daily logo. Plaintiff’s claims of copyright infringement were dismissed because of lack of evidence about American law. Plaintiff appealed and sought to set aside part of judgment dismissing claims against Bains defendants. Appeal allowed. Federal Court made legal and reviewable factual errors that were central to its decision to dismiss claims against Bains defendants. Claims against Bains defendants were remitted back to Federal Court for re-determination. Federal Court erred in law in relying on lack of evidence about American law as providing basis for dismissal of copyright claim. Lack of evidence about American law was not impediment to Federal Court interpreting PSA to adjudicate copyright claim. Canadian conflict law principles provide that court faced with interpreting contract that contained choice of foreign law clause should apply domestic law if it had no evidence as to content of foreign law. Fact Bains Defendants’ masthead complied with PSA at time of summary trial did not provide basis for dismissal of copyright claim in its entirety. PSA provided only for license to Bains Defendants to use Ajit Daily logo, or variation of it from specified date onwards and contained no release for acts of infringement that pre-dated that specified date. Choice of forum provision contained in PSA did not provide basis for dismissal of copyright claim because parties attorned to jurisdiction of Federal Court for adjudication of copyright claim through their pleadings and no party objected to Federal Court’s jurisdiction by reason of choice of forum clause in PSA. Federal Court erred in deferring dispute to New York courts on its own motion because court could not of its own motion decline to hear dispute that fell within its jurisdiction based on its belief that another forum was more appropriate.
Sadhu Singh Hamdard Trust v. Navsun Holdings Ltd. (March 2, 2016, F.C.A., J.D. Denis Pelletier J.A., David Stratas J.A., and Mary J.L. Gleason J.A., A-570-14) Decision at 248 A.C.W.S. (3d) 179 was varied. 264 A.C.W.S. (3d) 478.


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