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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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Income tax

Explanation by decision-maker contained interpretive errors

Plaintiff, having no income tax product for 2009 fiscal year, was subject of first arbitrary tax assessment. Canada Revenue Agency has taken recovery action against plaintiff for 2009 and 2010 years. In 2013, plaintiff’s accountant tried to send tax return electronically but during attempt he received error message. In response to plaintiff’s complaint as to deceptive nature of error message, Canada Revenue Agency sent letter maintaining position of not accepting statement submitted for 2009 fiscal year. Plaintiff brought application for judicial review against decision by Canada Revenue Agency not to accept statement. Prothonotary found that there was no jurisdiction to grant remedy sought as it would force Canada Revenue Agency to act in contravention of law. Plaintiff brought motion to quash order of prothonotary ordering cancellation of judicial review application. Motion granted in part. Motion dismissed as related to decision of prothonotary to strike paragraphs of notice of application concluding that minister could reassess in respect to statement of claim after three-year limitation period when it was not permitted by law. Motion granted as related relation to striking of paragraphs related to electronic issues. It was not plain and obvious that plaintiff’s notice of application did not disclose cause of action in relation to error message. It was unclear under what legal authority electronic statement, which was produced within limitation period of three years, was dismissed. Explanation by decision-maker contained interpretive errors with regard to what constituted statement.
6075240 Canada Inc. c. Ministre du Revenu national (June 27, 2016, F.C., Peter Annis J., T-387-16) 268 A.C.W.S. (3d) 684.



Plaintiffs’ claim was in pith and substance based on federal law

Plaintiff RD was status Indian and partner of plaintiff R partnership that had federal licence to sell tobacco products on reserve and to First Nations on different reserves across Canada. RD was charged with violations of Ontario and Alberta Tobacco Tax Acts for failing to possess provincial tobacco permits and federal tobacco licence was not renewed. Plaintiffs brought action against federal Crown, Attorney General of Canada, Minister of National Revenue, RCMP, Commissioner of RCMP, Canada Revenue Agency (CRA) employees, and RCMP officers. Prothonotary granted federal Crown’s motion and struck statement of claim against all defendants except federal Crown. Plaintiffs appealed in respect of CRA employees and RCMP officers (individual defendants). Appeal allowed. Individual defendants were re-added to style of cause. Prothonotary’s order was clearly wrong by incorporating new requirement of defendants’ presence being vital to final issue of case in test to support finding of jurisdiction in Federal Court. It was not plain and obvious that Federal Court lacked jurisdiction to entertain claims against individual defendants, as three-part test in jurisprudence was met. Section 17(5)(b) of Federal Courts Act (Can.) conferred jurisdiction to Federal Court over acts and omissions of officers, agents or servants of Crown. Federal legislation, being Excise Act, 2001 (Can.) (EA) and Indian Act (Can.) (IA), provided sufficiently detailed framework to nourish Federal Court’s jurisdiction. Plaintiffs’ claim was in pith and substance based on federal law and was governed by detailed federal statutory framework essential to outcome of case. EA and IA were federal legislation and clearly constituted “law of Canada” as used in s. 101 of Constitution Act, 1867 (Can.).
Dickson v. Canada (July 20, 2016, F.C., Sylvie E. Roussel J., T-2547-14) 268 A.C.W.S. (3d) 538.

Aboriginal Peoples


Status quo from before invalid election took place was to be maintained

Appeal tribunal upholding decision to dismiss councillors from their office as members of First Nation council and banned each from running for nomination in election for chief and council. Councillors applied for judicial review of tribunal’s decision. Application granted. Applicable standard of review was correctness. Court’s intervention was warranted and judicial review was proper forum for challenging tribunal’s decision. Tribunal acted outside its jurisdiction under Sturgeon Lake First Nation Election Act, 2009 in rendering its decision removing councillors, banning them from running in election and determining that they committed corrupt practice. Election having taken place was precondition to tribunal having jurisdiction to hear matter, and tribunal acted without authority as no election had taken place when it reached its decision. Tribunal acted beyond its jurisdiction in failing to abide by provisions that granted and restricted its power to act. Councillors were prematurely removed from positions and were unlawfully prevented from running in election. Tribunal’s decision was procedurally unfair, as councillors were not given notice or provided with opportunity to address allegations against them prior to decision purporting to remove them from office. In exceptional and complex situation, appropriate remedy was to quash decision removing councillors and banning them from participating in election, quash results of election, and order First Nation to institute election as soon as reasonably possible. Status quo from before invalid election took place was to be maintained, with councillors continuing to hold office.
Parenteau v. Sturgeon Lake First Nation Appeal Tribunal (May 12, 2016, F.C., Michael D. Manson J., T-489-16) 268 A.C.W.S. (3d) 251.


Opinion evidence

Application for leave to introduce reply report was granted

Plaintiff First Nations introduced issue of honour of Crown in amended statement of claim. First Nations did not intend to call further evidence on issue of honour of Crown but both Canada and Ontario elected to produce expert reports on issue. First Nations applied for leave to introduce reply report, written in response to Ontario’s expert report regarding honour of Crown. Application granted. Full motion was not required to address application and it was appropriate to address leave in abbreviated motion. Delay in producing report was explained, and parties had adequate notice of application. Information available in expert reports and trial record was sufficient to assess usefulness of First Nations’ expert report without need for additional affidavit evidence, and any prejudice to Canada or Ontario could be addressed by mitigative measures. Report did not merely dispute factual evidence offered in Ontario’s expert report but it advanced alternate approach to assessing whether honour of Crown had been upheld. Report was in response rather than in reply and it must be considered part of First Nations’ main case. While First Nations initially took position they would not call evidence on issue, choice by Ontario to commission expert report on honour of Crown reopened door for First Nations to respond with expert report. Issues arising in connection with honour of Crown were important, must be addressed fully in evidence and court was assisted by receiving evidence from parties on issues. Approach adopted by First Nations entitled Ontario to reply to expert report. First Nations’ expert was to testify before Ontario’s expert and was not to repeat any evidence covered in prior testimony. 

Alderville Indian Band v. R. (June 29, 2016, F.C., Leonard S. Mandamin J., T-195-92) 268 A.C.W.S. (3d) 99.

Air Law


Aeronautics Act (Can.) conferred broad discretion to grant, refuse, suspend or cancel security clearance

In 2008, after obtaining necessary security clearance and restricted area identity card (“RAIC”), applicant began employment at terminal of international airport. In January 2015, however, Transport Canada advised applicant security clearance was being reviewed as result of information received through law enforcement record check. It appeared applicant’s former spouse, with whom she shared joint custody of two children, was full patch member of Hells Angels, had been affiliated with gangs since 2002 and had been charged with (but not convicted of) several criminal offences including assault, uttering threats and possession of scheduled substance. Applicant was afforded opportunity to provide information or explanation, including with respect to any extenuating circumstances, on two occasions but denied opportunity for in-person meeting. Ultimately, Transportation Security Clearance Advisory Body determined she had failed to provide sufficient information to dispel concerns raised by record check. Minister of Transport’s delegate cancelled applicant’s security clearance on basis there was reason to believe, on balance of probabilities, she may be prone or induced to commit, or assist or abet another individual to commit, act that may unlawfully interfere with civil aviation. Applicant’s employment terminated as result of decision. Applicant brought application for judicial review on basis decision both unreasonable and procedurally unfair. Application denied. Section 4.8 of Aeronautics Act (Can.) conferred on Minister broad discretion to grant, refuse, suspend or cancel security clearance necessary to obtain RAIC. Minister entitled to take in to account any factor he or she considered relevant including criminal charges that did not result in conviction irrespective of whether person charged was holder of security clearance or close associate. Minister’s delegate had been satisfied applicant was aware of former spouse’s criminal involvement prior to end of marriage, raising concerns about her judgment, and there was risk former spouse might use tactics of intimidation, violence and manipulation against applicant to achieve goals of Hells Angels. There was nothing to indicate delegate had failed to consider matters such as involuntary nature of applicant’s relationship with former spouse or her involvement of police when he threatened her on previous occasions. Those matters did not, in any event, undermine basis for decision which was reasonably supported by evidence. Minister entitled to err on side of public safety. Access to restricted area of airport a privilege, not a right. Decision fell within range of possible, acceptable outcomes defensible in respect of facts and law. 

Wu v. Canada (Attorney General) (June 24, 2016, F.C., Paul S. Crampton C.J., T-1596-15) 268 A.C.W.S. (3d) 10.

Aboriginal Peoples

Crown relationship

Expropriation under s. 35 of Indian Act (Can.) did not require Band’s consent

Pipeline right-of-way through reserve of Indian Band was granted in 1955 to third-party company, through indenture. Respondent Minister of Indian Affairs and Northern Development consented to assignment of indenture to respondent company, executing assignment consent agreement. Applicant Band and its chief applied for judicial review. Application dismissed. Minister owed fiduciary duty to Band in deciding whether to consent to assignment of indenture and it also owed duty of good faith to company arising under indenture. Duty of good faith owed to company was subordinate to fiduciary duty owed to Band. Test used in expropriation under s. 35 of Indian Act (Can.) applied to assignment of interest that arose from expropriation. Minister must first determine that assignment of instrument was in public interest and then must ensure that Band’s interest in reserve was only minimally impaired. Minister did not have fiduciary duty until second stage of analysis, where consultation with Band was required. Section 35 did not require Band’s consent. Expropriation was made in proper manner for lawful purpose and was in public interest. Minister’s consent to assignment was continuation of initial recognition of public interest arising from expropriation. Minister’s consent to assignment was minimal impairment of Band’s use and enjoyment of its land. Assignment of indenture did not increase impairment of Band’s use of reserve land. Minister engaged Band many times during administrative proceeding. Minister discharged fiduciary duty owed to Band. Minister’s decision to consent to assignment of indenture was justifiable, transparent and intelligible and it met standard of reasonableness.
Coldwater Indian Band v. Canada (Minister of Indian Affairs and Northern Development) (May. 30, 2016, F.C., E. Heneghan J., T-133-15) 267 A.C.W.S. (3d) 255.

Industrial and Intellectual Property


Application for infringement of copyright and moral rights was dismissed

Copyright owners were three individuals who produced documentary about Polish woman who hid Jews from Germans during World War II. One owner was granddaughter of man who had been hidden by woman and who had made entries about his experience in diary. After seeing documentary, author wrote novel conveying fictionalized account of woman’s story using many facts obtained from documentary. Author self-published novel initially, and it became best-seller. Publisher acquired publish rights for novel. Documentary was never mentioned in book or publicity material. Owners brought application against author and publisher for relief for infringement of copyright and moral rights. Application dismissed. Owners failed to establish any infringement of copyright or moral rights. Woman’s story was not in and of itself covered by owners’ copyright in documentary. Factual details of woman’s story were also not covered by owners’ copyright in documentary. Owners’ copyright only protected owners’ specific expression of woman’s story through exercise of their skill and judgment. No one owned copyright in facts no matter what their relative size or significance. What was protected was owners’ particular means, method, and manner used to tell woman’s story. Using actual fact from documentary was not infringement no matter how large or small, or how significant or insignificant, such fact might be. There could be no copyright in facts or ideas, only in their expression through exercise of skill and judgment. Authors’ novel did not amount to substantial taking of protected material from documentary. Copyright protection for fictional characters did not extend to real people. Originality of documentary remained intact despite fact novel used its historical facts. Novel constituted new and original work of fiction emanating from historical facts. As for moral rights, there was negligible, if any, relevant evidence of how owners’ honour and reputation had been affected by novel.
Maltz v. Witterick (May. 10, 2016, F.C., Keith M. Boswell J., T-500-14) 266 A.C.W.S. (3d) 451.

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