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September 10, 2018

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Law Times • sepTember 10, 2018 Page 15 www.lawtimesnews.com key legislative requirements for SRED, being technological advancement, technological uncertainty, and systematic in- vestigation. Taxpayer appealed. Appeal dismissed. Legislation was clear that prescribed in- formation included informa- tion necessary to determine whether activity qualified as SRED. This interpretation was consistent with administrative policy statements. Information that was missing from form was required to be included on form, even if Minister was already in possession of relevant informa- tion. Westsource Group Hold- ings Inc. v. Canada (2018), 2018 CarswellNat 1158, 2018 FCA 57, Rennie J.A., Judith Woods J.A., and Laskin J.A. (F.C.A.); af- firmed (2017), 2017 CarswellNat 2649, 2017 CarswellNat 9105, 2017 TCC 9, 2017 CCI 9, Val- erie A. Miller J. (T.C.C. [General Procedure]). Federal Court Environmental Law STATUTORY PROTECTION OF ENVIRONMENT Approvals, licences and orders Prothonotary properly held it was debatable whether adequate alternative remedy existed Pest Management Regulatory Agency (PMRA) issued condi- tional registrations to respon- dents for certain pest control products (PCPs) under s. 8 of Pest Control Products Act. En- vironmental groups (applicants) applied for judicial review of alleged course of conduct by PMRA, claiming that PMRA improperly registered PCPs by issuing notices under s. 12 of Act, even though respondents failed to provide information required to show products' en- vironmental risks were accept- able to pollinators. Respondents brought motion to strike judicial review applications, alleging PMRA review processes consti- tuted adequate alternative reme- dy. Respondent also argued that applicants sought to review 79 discrete registration decisions, not course of conduct, con- trary to R. 302 of Federal Court Rules and outside time limit in s. 18.1(2) of Federal Courts Act. Prothonotary dismissed mo- tion, finding issues were debat- able and should be determined on judicial review. Respondents appealed. Appeal dismissed. Prothonotary did not err in her application of test to strike ju- dicial review application. Pro- thonotary properly held it was debatable whether adequate alternative remedy existed, and whether applicants' claims re- lated to course of conduct war- ranting exemption from R. 302 or s. 18.1(2). Prothonotary did not err by conf lating R. 302 and s. 18.1(2), or in her applica- tion of jurisprudence governing those provisions. Prothonotary did not misunderstand PMRA regime or confuse purpose and effect of ss. 8 and 12. David Suzuki Foundation v. Canada (Health) (2018), 2018 CarswellNat 1745, 2018 CarswellNat 3718, 2018 FC 380, 2018 CF 380, Catherine M. Kane J. (F.C.); affirmed (2017), 2017 CarswellNat 3285, 2017 CarswellNat 8481, 2017 FC 682, 2017 CF 682, Mandy Aylen J. (F.C.). Immigration and Citizenship ADMISSION Appeals and judicial review IAD not entitled to access information over which claim of informer privilege was asserted, even for purpose of assessing that claim Respondent sponsored his wife to come to Canada from In- dia but his application was re- fused because visa officer was not satisfied that marriage was genuine. Respondent appealed and in context of that appeal, Minister of Citizenship and Immigration provided appeal record in which portion of of- ficer's notes had been redacted. Immigration Appeal Division (IAD) directed Minister to pro- vide it with unredacted appeal record, including portion of record which Minister asserted was covered by informer privi- lege. IAD found that for Min- ister to redact contents of ap- peal record based on informer privilege, IAD must be satisfied that privilege applied to infor- mation which Minister sought to withhold. Minister brought application for judicial review. Application granted. IAD erred in finding that it was entitled to access information over which informer privilege was claimed and in finding that it was re- quired to review redacted infor- mation in present case to con- firm existence of privilege. IAD was not within "circle of privi- lege" and was not entitled to access information over which claim of informer privilege was asserted, even for purpose of as- sessing that claim. There must be express statutory language if tribunal's enabling statute was to be interpreted as entitling it to access privileged information and provisions in Immigration and Refugee Protection Act fell short of express, clear and un- ambiguous statutory language necessary. Jurisprudence appli- cable to informer privilege did not support IAD's understand- ing of test as requiring dem- onstration of two separate ele- ments, which were expectation of confidentiality and promise of confidentiality. Canada (Citizenship and Immigration) v. Hanjra (2018), 2018 CarswellNat 1255, 2018 CarswellNat 766, 2018 FC 208, 2018 CF 208, Richard F. South- cott J. (F.C.); application for judicial review allowed (2017), 2017 CarswellNat 3357, 2017 CarswellNat 3358, Paul Ater- man Member (Imm. & Ref. Bd. (App. Div.)). Tax Court of Canada Tax INCOME TAX Capital gains and losses Taxpayer did not have intention to hedge as he speculated by entering into forward contract Taxpayer made cash settlement payments in settlement of forward contract, which was bet against price of his common shares in bank. Taxpayer treated cash set- tlement payments as being on in- come account under s. 9(1) of In- come Tax Act and claimed busi- ness losses. Minister of National Revenue reassessed taxpayer on basis that payments were made on account of capital and resulted in capital losses. Taxpayer appealed. Appeal allowed. Cash settlement payments were payments made on income account resulting in business losses. Forward contract was entered into by taxpayer as adventure or concern in nature of trade as speculative instru- ment. Taxpayer's sole purpose in entering into forward contract was to speculate on and profit from anticipated decline in trad- ing price of bank's shares. Scheme for profit-making was present, as taxpayer had legitimate inten- tion of gaining profit from for- ward contract. Taxpayer did not intend to sell his shares in bank so by entering into forward con- tract, he increased his risk as he did not know if he would have to make payment or if he would re- ceive payment. Reduction of taxes otherwise payable was not one of purposes of taxpayer entering into forward contract. Taxpayer did not hedge capital asset of his bank shares when he entered into forward contract. Taxpayer did not have intention to hedge as he speculated by entering into for- ward contract. Facts did not show link in terms of quantum and timing between forward contract and ownership of or transaction in respect of bank's shares. MacDonald v. The Queen (2017), 2017 CarswellNat 3934, 2017 CarswellNat 9106, 2017 TCC 157, 2017 CCI 157, Domi- nique Laf leur J. (T.C.C. [General Procedure]). INCOME TAX Corporations Taxpayer's rental business considered specified investment business unless exception applied Taxpayer's business consisted of earning rental income from residential properties. Taxpayer received services from associ- ated corporations P Ltd. and W Ltd., which were directly or indi- rectly controlled by same family as was taxpayer. Taxpayer used arm's length property manage- ment company D Ltd.. Tax- payer employed fewer than five full-time employees. Taxpayer claimed small business deduc- tion in s. 125(1) of Income Tax Act, which could be applied to income earned by corporation from "active business" unless corporation carried on specified investment business. Specified investment business did not in- clude business that had more than five full-time employees or could, without services of associ- ated corporations, reasonably be expected to require more than five full-time employees. Minis- ter of National Revenue denied deduction on basis that taxpayer carried on specified investment business. Taxpayer appealed. Appeals dismissed. Taxpayer's rental business would be consid- ered specified investment busi- ness unless exception applied. Taxpayer did not directly employ more than five full-time employ- ees. One employee was full-time only partially through each of two tax years, couples split one full-time position between them, and another employee split time with P Ltd.. Taxpayer did not require more than five full-time employees but for services pro- vided by P Ltd. and W Ltd., so it carried on specified invest- ment business. Taxpayer did not establish that it would need full-time CEO, accountant and accounting clerk but for services provided by associated corpora- tions. Taxpayer established that it would require one full-time employee as building manager. Huntly Investments Lim- ited v. Her Majesty The Queen (2017), 2017 CarswellNat 7395, 2017 TCC 255, B. Paris J. (T.C.C. [General Procedure]). Ontario Civil Cases Civil Practice and Procedure LIMITATION OF ACTIONS Actions in tort Limitation period did not begin to run until plaintiff discovered that she had sustained threshold injuries Plaintiff brought action against defendants in personal injury ac- tion arising from motor vehicle collision. Plaintiff commenced two statements of claim on differ- ent dates for same action. Plain- tiff commenced initial action in September 2013 and second ac- tion in October, 2013. Defendants brought summary judgment mo- tion seeking to dismiss action on basis that circumstances of two actions were such that October action was statute barred under Limitations Act. Paintiff resisted motion and brought cross motion seeking leave to amend statement of claim to plead discoverability under sections 4 and 5 of Limita- tions Act within context of provi- sions of Section 267.5(5) of Insur- ance Act. Defendants' motion for summary judgment dismissed; plaintiff 's motion to amend state- ment of claim to plead discover- ability allowed. Limitation period did not begin to run until plaintiff discovered that she had sustained threshold injuries. This occurred on May 5, 2014, when she received prognosis from Dr. Getahun. Is- sue of discoverability remained genuine issue for trial. It was not in interest of justice for additional powers under Rule 20.04(2.1) to be utilized. In fact, under these circumstances it will constitute irresponsible use of judicial re- sources. Sanclemente v. Irwin (2017), 2017 CarswellOnt 5229, 2017 ONSC 2249, Barnes J. (Ont. S.C.J.). Health Law PROVINCIAL MATTERS Regulation of health professionals Legislature gave discipline committee task of fashioning penalties that would favour goal of eradicating sexual abuse of patients In 2009 and 2010 six female pa- tients of medical doctor in fam- ily practice in walk-in clinic complained of improper sexual touching. Discipline Committee of College of Physicians and Sur- geons of Ontario found doctor committed unprofessional con- duct with respect to five patients, sexually abused four, commit- ted disgraceful, dishonourable or unprofessional conduct with respect to fifth, but allegations of sixth complainant were not proven. Committee suspended doctor's licence for six months, imposed practice restrictions for 12 months, ordered training, and payment of $64,000 for com- plainants' therapy, and $35,000 in costs. College successfully appealed from penalty. Doctor appealed. Appeal allowed; disci- plinary committee's penalty was restored. Disciplinary commit- tee crafted careful penalty that ref lected principle of protection of public while balancing other principles that it was required to consider, including proportional- ity and rehabilitation. Disciplin- ary committee was manifestly concerned with paramount prin- ciples of protection of public and accepted evidence that doctor posed low risk of recidivism. It was implicit that discipline com- mittee was confident that his be- haviour could be corrected, even if prurient interest could not be completely ruled out. Legislature gave discipline committee task of fashioning penalties that would favour goal of eradicating sexual abuse of patients while taking into account and balancing other relevant factors and unlike crimi- nal sentences, self-regulated pro- fessions were mandated to make these determinations. Divisional Court had neither mandate nor evidentiary basis to intervene, let alone change, penalty range for entire category of behaviour and changing penalty range was effec- tively arbitrary exercise. College of Physicians and Surgeons of Ontario v. Peirovy (2018), 2018 CarswellOnt 6790, 2018 ONCA 420, Paul Rouleau J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.); re- versed (2017), 2017 CarswellOnt 379, 2017 ONSC 136, Molloy J., Dambrot J., and Ramsay J. (Ont. Div. Ct.). CASELAW

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