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LAW TIMES 14 COVERING ONTARIO'S LEGAL SCENE | MARCH 4, 2019 www.lawtimesnews.com any contracts on behalf of reg- istrant or bind him in any way nor to hire and instruct coun- sel and see transaction through to end. Sale of shares occurred, and it could be said registrant made supply of financial in- strument but it was also clear that, because it was purchaser who provided written offer to purchase assets, brokers had no idea at that point or any control over whether binding agree- ment could be finalized. This did not rise to level of arranging to transfer ownership of shares, even in event share transaction ultimately materialized, and so it cannot be said to qualify as supply of financial service un- der Excise Tax Act. Barr v. The Queen (2018), 2018 CarswellNat 2094, 2018 CarswellNat 7348, 2018 TCC 86, 2018 CCI 86, F.J. Pizzitelli J. (T.C.C. [General Procedure]). INCOME TAX administration and enforcement Basis for rejecting appeal was fundamental to self- assessing system of taxation Taxpayer retired, which re- sulted in overpayment of em- ployee contributions to Canada Pension Plan in 2011. Taxpayer suffered from serious medi- cal condition and had retired early due to condition and fam- ily demands, and had moved to another province. Taxpayer did not claim refund of overpay- ment until 4 years and 106 days had passed since balance due date, and 4 years and 229 days since year-end deadline. Minis- ter denied overpayment refund on basis that taxpayer waited longer than four years after bal- ance due date for 2011 taxation year to claim refund. Taxpayer appealed. Appeal dismissed. Wording of s. 38(1) of Canada Pension Plan was clear that where overpayment had been made, Minister must refund it if application was made within four years after end of year, but there was no discretion of Min- ister to refund over contribu- tion beyond four years. Basis for rejecting taxpayer's appeal and assertions was fundamental to self-assessing system of taxation in Canada; taxpayer, like all oth- er taxpayers, had obligation to file tax return within prescribed time limit. Neither move to an- other province nor illness and family circumstances excused his four-year and 106-day de- lay and neither did his lack of knowledge. As to request for further ministerial discretion to waive penalty or interest, tax- payer had to apply to fairness committee of Canada Revenue Agency. Jamal v. The Queen (2018), 2018 CarswellNat 5455, 2018 CarswellNat 5583, 2018 TCC 196, 2018 CCI 196, Randall S. Bocock J. (T.C.C. [Informal Pro- cedure]). Ontario Civil Cases Administrative Law JUDICIAL REVIEW JUrisdiction of coUrt to review Criminal Proceedings Rules do not confer jurisdiction on court Complainant alleged police of- ficer discharged firearms 19 times while making arrest with one bullet striking her causing serious injury. Complainant was in home at time of shooting and was not involved in alterca- tion. Shooting was investigated by Special Investigations Unit (SIU) and Director of SIU de- clined to lay charges. Complain- ant applied for order in nature of mandamus with certiorari in aid mandating Director to lay charges against police offi- cers however, application judge agreed with defendants and dismissed application without prejudice to complainant to commence application under Act on basis proper forum was dictated by legislation under which decision in issue was ren- dered. In this case, SIU and its mandate f lowed from provin- cial statute, therefore, applica- tion judge observed that case law indicated that as such relief sought herein was matter of ju- dicial review by Judicial Review Procedure Act. Complainant appealed. Appeal allowed. Is- sue was clearly criminal mat- ter, and consequently, Criminal Proceedings Rules directed it be heard by single judge of Supe- rior Court. Indeed, application judge found that there was no doubt that investigations un- dertaken by SIU were criminal in nature. However, contrary to complainant's position, it was not provisions of Criminal Pro- ceedings Rules that conferred jurisdiction on Superior Court. Since Criminal Proceedings Rules are procedural rules only, they do not confer jurisdiction on court, rather, combined ef- fect of ss. 774 and 482 of Crimi- nal Code confers jurisdiction. Zreik v. Ontario (Attorney General) (2019), 2019 Carswel- lOnt 1736, 2019 ONCA 89, K. Feldman J.A., P. Lauwers J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.); reversed (2017), 2017 Car- swellOnt 11464, 2017 ONSC 4516, Thomas A. Bielby J. (Ont. S.C.J.). Civil Practice and Procedure ACTIONS INVOLVING PARTIES UNDER DISABILITY mental incompetents Client had no status to bring motion to remove litigation guardian or vary appointment order Status. Daughter of deceased brought application to obtain accounting of deceased father's estate after bring stonewalled by respondent siblings for years. In course of siblings' unsuccess- ful attempt to have applicant's counsel removed, they disclosed email from their lawyer that ex- pressed doubt about mother's capacity currently and at time she executed power of attorney in favour of son. Applicant was granted right to appoint estate trustee during litigation. Moth- er's incapacity was confirmed during assessment and litiga- tion guardian was appointed. Accounting had still not ad- vanced and litigation guard- ian obtained mother's personal banking records, which sib- lings' counsel objected to as be- yond his jurisdiction. Litigation guardian had brought applica- tion on behalf of mother to re- quire siblings to pass accounts. Parties knew mother had re- ceived spousal trust distribu- tions; issue was what siblings did with funds once in mother's account. Respondent sibling's counsel brought series of objec- tions to proceedings brought by litigation guardian and estate trustee, and proposed motion to remove litigation guard- ian or vary appointment order. Litigation guardian requested case conference to address his status in relation to upcoming motions. This was endorsement made in case conference. Re- spondent's counsel was unable to cite basis on which his client had status to bring motion to re- move litigation guardian or vary appointment order, so proposed motion was not to be sched- uled as it disclosed no prima facie case. Litigation guardian remained under terms of ap- pointment. If mother wished to bring motion to remove litiga- tion guardian, she could not do so on ex parte basis, as capacity issues required transparency. Mayer v. Rubin (2018), 2018 CarswellOnt 15062, 2018 ONSC 5273, F.L. Myers J. (Ont. S.C.J.). PRACTICE ON APPEAL interlocUtory or final orders Proving valid liens included issue of whether plaintiff was proper lien claimant Defendant constructed residen- tial tower and plaintiff supplied precast concrete. When plain- tiff was allegedly not paid, it filed two separate construction liens against property totalling $2,000,000. Plaintiff 's lawyer made mistake when register- ing lien documents, incorrectly using Ltd. instead of Inc. in plaintiff 's name on lien docu- ments. Defendant claimed that liens were invalid ab initio and it brought motion to dismiss lien claims and for return of se- curity it posted to vacate liens. Judge determined that mis- nomer was not reason to dis- charge liens, and he exercised discretion under curative pro- vision of s. 6 of Construction Lien Act and amended style of cause. Defendant appealed. Plaintiff brought motion for order quashing appeal on ba- sis that s. 71(3) of Act prohib- ited appeal from interlocutory order. Motion was dismissed. Plaintiff brought motion to set aside order of motions judge. Motion granted. Reasons of F J. were made for purposes of mo- tion only. Nothing in his order precluded defendant from rais- ing misnomer defence at trial. At trial, plaintiff will have the onus of proving that it has valid liens, which will include issue of whether plaintiff was proper lien claimant. Motions judge erred in concluding that order of F J. was final order. Stubbes Precast v. King & Columbia (2018), 2018 Carswel- lOnt 18402, 2018 ONSC 6539, T.A. Heeney J., B. Conway J., and P. Sutherland J. (Ont. Div. Ct.); reversed (2018), 2018 Carswel- lOnt 8086, 2018 ONSC 3062, Turnbull J. (Ont. Div. Ct.). SUMMARY JUDGMENT reqUirement to show no triable issUe Admissibility of expert evidence could not be resolved justly without voir dire Motorist M and his passengers were driving northbound in slushy, snowy, and slippery road conditions. Motorist B and his passengers were driving south- bound on same road. B lost con- trol of his vehicle while trying to pass other southbound vehicles, and his vehicle struck M's ve- hicle. One passenger in each vehicle was killed. Four separate actions were brought, with three naming M as one of defendants, resulting in cross-claims be- ing brought against him. M brought motion for summary judgment dismissing actions and cross-claims as against him. Motion dismissed. There was genuine issue requiring trial on extent of M's liability. Admis- sibility of evidence of expert for certain plaintiffs could not be resolved justly without voir dire at which expert would be cross- examined. Further, weighing of that expert's evidence, were it to be ruled admissible, as well as evidence of experts for M, would also require viva voce cross-examination. It was not appropriate to use enhanced powers under R. 20.04(2.1) and (2.2) of Rules of Civil Procedure to make those findings of ad- missibility or weight. Admis- sibility of expert evidence and assessment of its weight in this case should take place in con- text of full trial so that just and fair determination of liability of parties to all four actions could be determined. Brown v. Her Majesty the Queen (2018), 2018 CarswellOnt 8655, 2018 ONSC 3411, Bloom J. (Ont. S.C.J.). Conflict of Laws INSURANCE principles particUlar to aUtomobile insUrance Discretionary decision to grant leave not based on any palpable or overriding errors Certain plaintiff was injured in motor vehicle accident in Las Vegas, Nevada. All claims aris- ing from accident had been settled, with exception of her entitlement against defendant insurer to benefits under OPCF 44R Endorsement in her On- tario motor vehicle insurance policy. Defendant took position that parties had reached binding "litigation agreement", requiring Ontario law to be used. Plaintiffs disagreed and brought motion to determine law to be applied. De- fendant brought cross-motion seeking declaration that choice of law question was resolved by binding litigation agreement and that Ontario law was to be used. Motion judge dismissed defen- dant's cross-motion and declared that Nevada law would apply. Defendant appealed. Appeal dis- missed. Motion judge's decision that what occurred on certain date was not litigation agree- ment, but rather admission by plaintiffs' counsel based on mis- understanding of law, attracted deference, and court would not interfere. There was ample basis for motion judge to come to de- cision he did. Discretionary de- cision by motion judge to grant leave to plaintiffs to withdraw their choice of law admission, by analogy to R. 51.05 of Rules of Civil Procedure, was not based on any palpable or overriding er- rors or errors in principle. Kampers v. York Fire & Casualty Insurance Company (2019), 2019 CarswellOnt 1033, 2019 ONCA 56, David Brown J.A., David M. Paciocco J.A., and B. Zarnett J.A. (Ont. C.A.); af- firmed (2018), 2018 CarswellOnt 8406, 2018 ONSC 3000, M.A. Garson J. (Ont. S.C.J.). Debtors and Creditors INTEREST interest act Parties inadvertently and only marginally ran afoul of s. 4 of Interest Act Creditor made number of loans to respondent and its affiliate companies. Term in loan agree- ment required debtor to pay "discount fee" of. 003 per cent of outstanding loans on repayment date and for every day thereafter while loans remained outstand- ing. Debtor defaulted on loans and disputed amount of interest owing, contending that discount fee failed to comply with Inter- est Act (Can.). Application judge held that discount fees were inter- est charges and since they were not annualized, totality of inter- est charges had to be capped at five per cent per annum. Creditor appealed; debtor cross-appealed. CASE LAW

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