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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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Taxation

Income tax

Clients must be notified when court considering order requiring disclosure

Canada Revenue Agency sent requirement pursuant to s. 231.2(1) of Income Tax Act (Can.) to taxpayer lawyer, requesting documents regarding income and expenses. Taxpayer claimed that details such as clients’ names in accounts receivable listing were protected by solicitor-client privilege. Federal Court granted Minister of National Revenue’s application for compliance order. Federal Court of Appeal allowed taxpayer’s appeal in part, dismissed taxpayer’s arguments based on s. 8 of Canadian Charter of Rights and Freedoms and sent matter back to Federal Court. Minister appealed. Appeal allowed. Federal Court of Appeal’s order was set aside and Minister’s application for compliance order was dismissed, given holding in companion case that accounting records exception in s. 232(1) of Act was constitutionally invalid. Definition of “solicitor-client privilege” in s. 232(1) of Act was clearly intended to permit Minister to have access to lawyers’ accounting records even if they contained otherwise privileged information. While taxpayer’s challenge was based on argument that definition of “solicitor-client privilege” in s. 232(1) of Act did not satisfy jurisprudential criteria, in companion case, s. 232(1) of Act was found to be constitutionally invalid. In companion case, Act’s requirement scheme as it applied to lawyers and notaries unjustifiably infringed s. 8 of Charter, which meant that request made to taxpayer under scheme was now foreclosed. To properly safeguard clients’ right to solicitor-client privilege, clients must be notified when court considered making order requiring disclosure of possibly privileged information, and be given opportunity to contest disclosure of information.
Minister of National Revenue v. Thompson (Jun. 3, 2016, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Karakatsanis J., Wagner J., and Gascon J., 35590) Decision at 230 A.C.W.S. (3d) 736 was reversed. 265 A.C.W.S. (3d) 1083.


Constitutional Law

Charter of Rights

Exception for lawyer’s accounting records in s. 232(1) of Income Tax Act (Can.) unconstitutional

Canada Revenue Agency (CRA) sent notaries practising law in Quebec requirements under s. 231.2 of Income Tax Act (Can.) to obtain information or documents relating to notaries’ clients for tax collection or audit purposes. Notaries’ association brought action against Attorney General of Canada and CRA (Crown) to have ss. 231.2 and 231.7 of Act and accounting records exception in s. 232(1) of Act declared to be unconstitutional with respect to notaries. Trial judge allowed action. Court of Appeal allowed Crown’s appeal but solely to make clarifications. Crown appealed. Appeal dismissed. Requirement scheme in ss. 231.2(1) and 231.7 of Act violated s. 8 of Canadian Charter of Rights and Freedoms and was of no force and effect for notaries and lawyers. Exception for lawyer’s accounting records set out in definition of “solicitor-client privilege” in s. 232(1) of Act was unconstitutional and invalid. There were defects in requirement scheme relating to information protected by professional secrecy that violated s. 8 of Charter. Exclusion of accounting records of notaries and lawyers from protection of professional secrecy as set out in definition of “solicitor-client privilege” in s. 232(1) of Act infringed s. 8 of Charter. Infringement of s. 8 of Charter was not justified by s. 1 of Charter. Act had pressing and substantial objective of collection of taxes. There was logical and direct connection between collection of taxes and requirement scheme. Sections 231.2(1), 231.7 and 232(1) of Act, in relation to notaries and lawyers, did not minimally impair right to professional secrecy.
Canada (Procureur général) c. Chambre des notaires du Québec (Jun. 3, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., 35892) Decision at 242 A.C.W.S. (3d) 225 was affirmed. 265 A.C.W.S. (3d) 1082.


Drug offences

Trafficking

Convictions entered for trafficking in cocaine

Accused were members of biker gang providing protection to cocaine trafficking organization. Trial judge convicted accused of conspiracy to traffic in cocaine in association with criminal organization but acquitted accused of trafficking. Trial judge held no evidence accused’s activities aided or abetted actual trafficking activities. Crown’s appeal allowed and convictions for trafficking in cocaine entered. Further appeal to Supreme Court of Canada dismissed. Trial judge erred in law by failing to conclude on facts as found that accused liable for trafficking as aiders and abettors. Accused’s acts of providing protection assisted and encouraged actual trafficking activity.
R. v. Knapczyk (March 22, 2016, S.C.C., McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., and Brown J., 36612, 36613) Decision at 124 W.C.B. (2d) 487 was affirmed. 129 W.C.B. (2d) 254.


Appeal

Grounds

Miscarriage of justice did not take place

Accused appealed convictions as co-conspirator in extortion plot raising ineffective assistance of trial counsel. Trial counsel being subject to disciplinary proceedings but permitted by law society to continue with pending criminal trial. Accused rece­­ived independent legal advice and confirmed choice of trial counsel and trial judge dismissed Crown application to remove counsel. Accused refused to waive privilege over trial file and independent legal advice for purpose of appeal. Trial counsel had failed to object to admission of document purportedly handwritten by accused or to assert spousal privilege over evidence. Accused asserted on appeal that trial counsel had been ineffective. Appeal from convictions dismissed. Further appeal to Supreme Court of Canada dismissed. No miscarriage of justice in any form took place in this case.
R. v. Meer (Jan. 21, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., 36448) Decision at 123 W.C.B. (2d) 106 was affirmed. 129 W.C.B. (2d) 205.


Murder

First degree murder

Trial judge’s findings were supported by evidence

Deceased was sexually assaulted, killed by strangulation and then burned. Accused and deceased were seen together in security videos before her death. Accused’s DNA was found on tissue sample underneath deceased’s fingernails, but no other DNA evidence linked accused to deceased. Trial judge convicted accused of first degree murder. Trial judge held that underlying offence of sexual assault and murder were one part of single transaction. Trial judge found that accused’s partner provided credible evidence of accused’s conduct after deceased’s death, which included unusual washing. Trial judge held that accused’s conversation with undercover officer, regarding burning of body to dispose of it, was probative circumstantial evidence. Trial judge found that transference of DNA occurred during struggle between accused and deceased that resulted in her death. Trial judge held that it was established beyond reasonable doubt that accused was perpetrator who sexually assaulted and killed deceased. Accused’s conviction appeal was dismissed. Verdict was not unreasonable and was one that properly instructed jury, acting judicially, could have rendered. Trial judge’s assessment of evidence of accused’s partner could not be said to be unsupported by evidence. Trial judge’s findings were supported by evidence, which served to support ultimate conclusion of guilt. Accused appealed. Appeal dismissed. Reasons of majority were substantially agreed with.
R. v. Shaoulle (May. 2, 2016, S.C.C., McLachlin C.J.C., Abella J., Moldaver J., Côté J., and Brown J., 36704) Decision at 125 W.C.B. (2d) 296 was affirmed. 129 W.C.B. (2d) 167.


Jury

Deliberations

Despite trial judge’s errors, trier of fact would inevitably have entered conviction

Accused was charged with first degree murder and attempted murder. Trial judge refused to admit in evidence out-of-court statements made by one victim and gave instruction with respect to fabrication of alibi. Accused was eventually convicted on both counts. Accused appealed against his convictions. Majority of Court of Appeal held that trial judge erred in not admitting in evidence out-of-court statements and in giving jury instruction with respect to fabrication of alibi. However, majority found that deference was owed to trial judge’s decision to give instruction in that regard. Concluding that case against accused was overwhelming, they applied curative proviso of s. 686(1)(b)(iii) of Criminal Code and confirmed convictions. Accused appealed as of right to Supreme Court of Canada. Appeal dismissed. Instruction trial judge gave with respect to fabrication of alibi was erroneous. Trial judge should specify in such instruction that fabrication of alibi would support inference of consciousness of guilt, but no more than that. Instruction in this case did not satisfy this requirement. Moreover, there should be other evidence independent of finding that alibi was false on basis of which reasonable jury could conclude that alibi was deliberately fabricated and that accused was involved in that attempt to mislead jury. However, despite trial judge’s errors, evidence in case at bar was so overwhelming that trier of fact would inevitably have entered conviction against accused. Therefore, convictions were upheld.
R. c. Laliberté (Apr. 29, 2016, S.C.C., McLachlin C.J.C., Cromwell J., Wagner J., Gascon J., and Brown J., 36712) Decision at 126 W.C.B. (2d) 478 was affirmed. 129 W.C.B. (2d) 153.


Sale of Land

Covenants for title

Section 29 of the Historical Resources Act (Alta.) limits positive covenants that may run with land

Lougheed owned building designated Municipal Historical Resource. To compensate Lougheed for any decrease in value and rehabilitation expenses, City agreed to pay Lougheed $3.4 million in 15 annual installments (Incentive Payments). “Incentive Agreement” imposed restrictions on Lougheed and registered by caveat on title. Lougheed borrowed money from Equitable Trust. Loan was secured by, inter alia, assignment of Incentive Agreement. Lougheed subsequently obtained additional financing from Heritage Capital, assigning its right to Incentive Payments as security. When Lougheed defaulted on Equitable Trust’s loan, Equitable Trust commenced action to enforce its security. Building advertised for judicial sale. Lougheed applied for declaration that Incentive Payments were not an interest in land and not included in assets being sold in judicial sale. Master issued requested declaration and chambers judge upheld master’s declaration, finding that s. 29(3) of Historical Resources Act (Alta.) did not operate such that Incentive Payments could run with land as positive covenant. Majority of Court of Appeal allowed Equitable Trust’s appeal, finding that Act creates sui generis covenants that displace common law rule that positive covenants do not run with land. Heritage Capital Corporation’s appeal allowed. Section 29 of Act does not completely displace common law rule that positive covenants do not run with land but rather limits positive covenants that may run with land to those that are in favour of person or organizations listed at s. 29(1), namely: Minister, council of municipality in which land is located, Alberta Historical Resources Foundation or historical organization approved by Minister. Exception to common law rule should be limited by precise language of provision and underlying purpose of Act. Chambers judge properly interpreted Act. Although City fell within s. 29(1) list of organizations, covenant to pay Incentive Payments was not in its favour. As result, Incentive Payments did not become an interest that runs with land by virtue of Act. Nor did Incentive Agreement reveal intention that Incentive Payments would run with land. There was no basis on which to disturb chambers judge’s findings with respect to contractual interpretation of Incentive Agreement. Chambers judge’s conclusion that Incentive Payments were not sold in judicial sale was supported by evidence. No indication in any sale documents that court intended to sell, or purchaser intended to buy, Incentive Payments.
Heritage Capital Corp. v. Equitable Trust Co. (May. 6, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J., 36301) Decision at 248 A.C.W.S. (3d) 224 was reversed. 265 A.C.W.S. (3d) 254.


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An estate trustee who took an ‘egregious' position in litigation has been ordered to personally pay more than $140,000 in costs. Will this ruling serve as an appropriate caution to executors on how they conduct themselves in litigation?
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