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Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts.

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Immigration

REFUGEE STATUS

Failure to consider ground of persecution was breach of procedural fairness

Applicants were denied refugee protection. Application for judicial review was allowed. Board erred in failing to consider applicant’s evidence of gender-based persecution, namely domestic violence from ex-husband. Failure to consider ground of persecution was breach of procedural fairness. Ground was hinted at in PIF and was squarely raised in testimony and documentary evidence. Portions of evidence given in support of refusal had no relationship to evidence. Manner of questioning by member of board fell short of standard and used language that was highly inappropriate and unfair and irrelevant questioning. Proceeding was unfair. Inappropriate examination created hostile environment and coloured appreciation of evidence.
Varga v. Canada (Minister of Citizenship and Immigration) (May. 10, 2013, F.C., Donald J. Rennie J., File No. IMM-8539-12) 227 A.C.W.S. (3d) 1135.

Administrative Law

NATURAL JUSTICE

Applicant received notice of hearings and had two opportunities to make case

Applicant was full-time employee of band since 1976. There was no employment contract. Band adopted severance pay policy for full-time employees in respect of employment prior to 1997. Applicant argued decision deprived applicant of severance pay of two weeks for each year of service from 1976 until retirement in 2011. Band provided applicant with hearing. Applicant chose not to appear before council and make representations. Applicant did not appeal decision. Application for judicial review was dismissed. Policy or practice to pay severance for all employees was not established. There was no documentary evidence to support assertion that policy abolished pre-existing entitlement to two weeks of severance pay for every year worked. Decision could not be impugned on basis of procedural fairness. Applicant received notice of hearings and had two opportunities to make case.
Belleau v. Garden River First Nation (May. 6, 2013, F.C., Donald J. Rennie J., File No. T-627-12) 227 A.C.W.S. (3d) 913.

Taxation

GOODS AND SERVICES TAX

University not liable to collect and remit GST on parking fines

Appeal by university from reassessment by Minister under Excise Tax Act (Can.), for period from April 1, 2003 to May 31, 2005. University had four types of parking spaces. Permit lots and visitor lots were identified with signs and visitor lots had more information indicating that vehicles not displaying valid receipts were subject to ticketing and impoundment. University hired people to patrol and enforce parking regulations and issue ticket to be left on car for infractions. On reverse of ticket it was written that traffic offence notice (TON) was issued under authority of s. 27 of University Act (B.C.). Appeal allowed. Reassessment was referred back to Minister for reconsideration and reassessment on basis that university was not liable to collect and remit GST on parking fines. By driver’s conduct in taking parking space, knowing that there was requirement of permit of TVM ticket to prove payment and leaving without having complied, now with TON indicating that driver owed university $30, non-paying driver had, in accordance with reasoning of Federal Court of Appeal in 2000 judgment, struck deal with university. Contractual terms of contract between non-paying driver and university did not provide for consideration for parking spot but agreement by non-paying driver to run risk of having to pay fine. There was no intention to breach agreement to pay for taxable supply of parking. University had statutory authority to invoke fine for traffic offence and this is what it did. Fines were imposed because non-paying drivers were effectively stealing. Notwithstanding there may have been contract, in these circumstances GST was not exigible on fine.
Simon Fraser University v. R. (Apr. 22, 2013, T.C.C. [Informal Procedure], Campbell J. Miller J., File No. 2012-1698(GST)I) 227 A.C.W.S. (3d) 1201.

Employment Insurance

ENTITLEMENT

Taxpayer could not change status to employee unilaterally

Appeal by taxpayer from decision by Minister denying taxpayer’s application for employment insurance benefits. Taxpayer was executive chef at resort for six months. Minister found that taxpayer was not engaged in insurable employment for purpose of Employment Insurance Act (Can.). Appeal dismissed. Taxpayer and resort shared on-going, common intention that taxpayer was independent contractor. Parties’ negotiation of contract indicating taxpayer would be independent contractor at initial meeting was evidence both intended taxpayer to be independent contractor. Taxpayer could not change status to employee unilaterally after resort failed to reduce contract to writing. Given taxpayer’s training and experience as executive chef and owner’s inexperience, lack of supervision, control and training were not useful factors in determining taxpayer’s status. Failure to hire assistants for costs reasons suggested ability to do so and was consistent with independent contractor relationship. Taxpayer’s failure to work for others and freedom to come and go while at resort were consistent with independent contractor relationship. Taxpayer’s declaration of ownership of, and claim for compensation in respect to, “signature dishes” strongly supported independent contractor relationship. Level of control was objectively consistent with parties’ intention that taxpayer be independent contractor. Chance of profit was objectively consistent with status as independent contractor but risk of loss was not.
Therrien v. Minister of National Revenue (Apr. 22, 2013, T.C.C. [Employment Insurance], David E. Graham J., File No. 2012-4957(EI)) 227 A.C.W.S. (3d) 1037.

Taxation

INCOME TAX

Organization could not or would not bring itself into compliance

Appeal by appellant from Canada Revenue Agency’s confirmation of Minister’s proposal to revoke appellant’s registration as charitable organization based on list of non-compliance. Minister’s notice of intent to revoke was issued following audit and listed grounds included appellant failed to demonstrate it devoted all of its resources to charitable activities, it failed to keep information to enable Minister to determine whether there were any grounds for revocation of registration, and failed to keep duplicate donation receipts. Appeal dismissed. There was evidence in record to support reasonableness of decision on all three grounds and it was not court’s role to re-weigh evidence. Even if guidelines somehow restricted exercise of Minister’s discretion to revoke, record supported fact that this was case of aggravated non-compliance as organization could not or would not bring itself into compliance.
World Job and Food Bank Inc. v. R. (Mar. 5, 2013, F.C.A., Johanne Gauthier J.A., Noël J.A., and Trudel J.A., File No. A-382-11) 227 A.C.W.S. (3d) 1211.

Appeal

PROCEDURE

Appeal of interlocutory decision carried risk that final decision would render appeal moot

Appellant sought to strike out part of respondent airline’s memorandum. Appellant brought complaint against airline in respect of certain tariff rules. Respondent agency made interlocutory decision dismissing appellant’s motion to suspend impugned tariff rule pending disposition of complaint. Appellant appealed interlocutory decision of agency. Agency rendered its final decision on complaint. Agency argued appeal had been rendered moot by final decision. Appellant sought to strike out reference to final decision in memorandum. Application dismissed. Appeal of interlocutory decision carried risk that final decision would render appeal moot. It was open to airline to argue in memorandum that appeal was moot and should not be heard. It was open to appellant to argue to contrary.
Lukács v. Canadian Transportation Agency (Mar. 6, 2013, F.C.A., K. Sharlow J.A., File No. A-460-12) 227 A.C.W.S. (3d) 924.

Breathalyzer

PROOF OF BLOOD-ALCOHOL LEVEL

Accused did not take opportunity of adjournments to retain expert to give evidence

Accused appealed his convictions for impaired driving and driving over .08 (impaired conviction conditionally stayed). Accused testified to having only drank two beers, and that just before driving he had used asthma medication that was conceded by Crown to contain 34% dehydrated alcohol. Accused submitted that video recording of second breath test, which he claimed would have shown he was sober, was intentionally destroyed. Accused submitted that trial judge erred by failing to find that lack of yearly maintenance established that intoxilyzer was operating improperly. Appeal dismissed. Accused did not take opportunities of adjournments made for that purpose to retain expert to give evidence on his theory asthma medication affected readings. There was no indication either way which party, if any, would be assisted by lost videotape of second breath test, if it had been available. Trial judge made it clear to accused that expert was required: effects of Primatene Mist were not so notoriously known that reasonable person could not dispute it or that it was capable of immediate and accurate demonstration by resorting to readily accessible resources of indisputable accuracy. Qualified expert referred to his manual and indicated that although preventative maintenance inspection should be performed, absence of such inspection did not mean that instrument was either improperly serviced, or that it could not be relied upon to produce accurate and reliable readings of individual’s blood alcohol concentration. He was satisfied that instrument was operating properly and was suitable for use. His opinion was corroborated by two exhibits which indicated that appropriate testing was done.
R. v. Bajwa (May. 6, 2013, Ont. S.C.J., Fragomeni J., File No. SCA(P) 1691/12) 106 W.C.B. (2d) 743.

Appeal

GROUNDS

Trial counsel failed to follow accused’s instructions that he wanted to testify

Application to introduce fresh evidence and appeal from conviction. Accused convicted of possession of weapon for dangerous purpose and aggravated assault following road rage incident. He was sentenced to 90 days’ incarceration, to be served intermittently, plus three years’ probation. Accused appealed from his convictions on ground of ineffective assistance of counsel. He argued trial counsel failed to follow his instructions that he wanted to testify. Application to introduce fresh evidence granted, appeal allowed and new trial ordered. Record of trial proceedings and fresh evidence filed by accused indicated that despite repeated efforts by both accused and Crown, and direct orders of court, accused’s trial counsel failed to respond to accused’s allegations against him and failed to provide trial brief or any associated documents to accused or Crown. Throughout, accused instructed trial counsel that he wished to testify at trial. Had he been permitted to testify at trial, accused’s testimony would have challenged complainant’s credibility; challenged evidence of alleged eyewitness to assault; sought to corroborate other defence evidence led at trial; and cast some doubt on Crown’s assertion that accused was not acting in self-defence. Accused required assistance of Tagalog interpreter at trial and did not understand some remarks by his trial counsel and trial judge. After accused’s trial, his trial counsel was disbarred by Law Society of Upper Canada based in part on complaints from other clients that he failed to obtain or follow their instructions. In absence of some explanation or response from accused’s trial counsel, accused’s claim that he instructed his counsel that he wished to testify and was prevented from doing stood uncontradicted.
R. v. Eroma (Mar. 28, 2013, Ont. C.A., J. Simmons J.A., E.A. Cronk J.A., and E.E. Gillese J.A., File No. CA C52330) 106 W.C.B. (2d) 684.

Bankruptcy and Insolvency

PETITIONS

Bankruptcy application brought to put wrench in position of husband in litigation

Estranged spouses had operated several businesses together for 25 years. Parties executed separation agreement. Subsequently, husband claimed he noticed some irregularities in amounts being paid to creditors. Husband and companies commenced civil action against wife and others for payment of damages of $3 million and other relief on basis of alleged fraud. Husband also amended his divorce proceedings to claim separation agreement should be set aside and support payments provided for in agreement be set aside retroactively on grounds that wife had assisted in defrauding companies, which was unknown at time of execution of separation agreement. Wife commenced civil action against husband and companies, central issue being who was responsible for fraud on their businesses. Wife brought application for bankruptcy. Principal debt relied on by wife in support of her bankruptcy application was debt arising from separation agreement and family law proceedings. There was evidence that husband had been indebted to other creditors other than the FRO for spousal arrears. None of these were listed in application for bankruptcy order, nor were they subject of evidence in chief from wife. Application dismissed. There was no legitimate purpose in this bankruptcy application. It was not brought with a view to orderly and fair distribution of property of bankrupt among its creditors on pari passu basis. Applicant did not refer to or rely on any creditors other than herself, and no other creditor was served with application. What wife may be owed was subject of dispute in family court proceedings and two civil proceedings. No thought was given to having orderly and fair distribution of property of bankrupt among husband’s creditors. Wife did not bring bankruptcy application in order to have trustee sue her for fraud. Bankruptcy application had been brought for improper purpose of putting wrench in position of husband in litigation who asserted fraud on part of wife. Refusal of wife to assist with independent report was evidence of bad faith on her part in dealing with issue which was central to dispute and raised question as to whether their defence of fraud claim was bona fide defence. Claim of husband against wife was bona fide dispute so far as he was concerned.
Gaal, Re (Mar. 6, 2013, Ont. S.C.J., Newbould J., File No. 31-207823-T) 227 A.C.W.S. (3d) 20.

Arbitration

AWARD

Appeal really about whether arbitrator applied proper contractual legal principles

Application for leave to appeal arbitration award and supplementary award. Section 45(1) of Arbitration Act, 1991 (Ont.), provides that if arbitration agreement did not deal with question of law, party may only appeal on question of law, with leave. Applicant claimed that arbitrator’s errors arose as pure questions of law. Respondent characterized errors as questions of mixed fact and law, for which no appeal was permitted. Application allowed. Leave to appeal granted. Once all necessary factual findings were made, applying law to those facts became question of law. Appeal would really be about whether arbitrator applied proper contractual legal principles to facts as he found them in coming to his decision. Grounds of appeal reflected errors in law.
Zafir Holdings Inc. v. Grassmere Construction Ltd. (Mar. 27, 2013, Ont. S.C.J., Mesbur J., File No. CV-12-469468) 227 A.C.W.S. (3d) 16.
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