Law Times

April 29, 2019

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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | APRIL 29, 2019 15 CASE LAW Supreme Court of Canada Criminal Law BAIL, INTERIM RELEASE AND DETENTION Review of detention oRdeR wheRe tRial delayed Parliament did not intend to restrict court's ability to review detention of accused Accused was arrested following high-speed car chase and charged with number of offences, includ- ing numerous firearm offences. Accused was already on bail for unrelated charges. Accused con- sented to detention without bail hearing. Accused pled guilty to outstanding unrelated charges and was sentenced to 14 months incarceration. When accused was no longer detained on any other matter, he unsuccessfully sought bail on firearm charges. Accused unsuccessfully brought review application on basis that judge saw no significant change to justify release. Accused pur- sued 90-day bail review under s. 525 of Code. British Columbia Supreme Court formulated two- step test for reviewing s. 525 hear- ing and on basis of test, accused's detention order was confirmed. Accused appealed. Appeal al- lowed. Parliament did not intend to restrict court's ability to review detention of accused at s. 525 hearing to situations in which there had already been unreason- able delay. Section 525 hearing was automatic procedure and mandatory obligations to make application and to fix date was with jailer and judge respectively. Ninety day period applicable to accused's s. 525 hearing should have begun on November 26 2016, which was date of his s. 520 review. Section 525 imposed independent responsibility on reviewing judge to consider whether continued detention of accused was justified and estab- lished discretionary mechanism designed to prevent unreason- able delay and to expedite trials of individuals in remand. R. v. Myers (2019), 2019 Car- swellBC 658, 2019 CarswellBC 659, 2019 SCC 18, 2019 CSC 18, Wagner C.J.C., Abella J., Mol- daver J., Karakatsanis J., Gas- con J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2017), Riley J. (B.C. S.C.). Federal Court of Appeal Tax INCOME TAX tax cRedits Percentages found by Tax Court judge did not fall within meaning of words "near equal" Taxpayer separated from father of her child. Court orders issued, with consent order providing for joint custody and shared parent- ing of child. From July 1, 2013 to June 30, 2015, taxpayer received entire Canada Child Tax Benefit (CCTB) for child. At some point in time, father applied to receive half of amount. Minister issued redeterminations under Income Tax Act for 2012 and 2013 taxa- tion years, on basis that taxpayer was shared-custody parent and only entitled to 50 percent of CCTB. Taxpayer filed notice of objection in regard to redetermi- nations and Minister confirmed redeterminations that taxpayer was shared-custody parent. Ap- peal by taxpayer was dismissed. Tax Court of Canada judge found that taxpayer had resided with child between 57.14 per- cent and 59.38 percent of time, that this was sufficiently close to splits in other cases and that as result he was bound to conclude that taxpayer and father resided with child on near equal basis. Taxpayer appealed. Appeal al- lowed. There could be no doubt that percentages found by Tax Court judge did not fall within meaning of words "near equal". On Tax Court judge's findings of fact regarding time spent by tax- payer and father with child when child resided with them, taxpay- er and father were not shared- custody parents. Taxpayer was not shared-custody parent as defined in s. 122.6 of Act. Deci- sion of Tax Court of Canada was ordered set aside and taxpayer's appeal from Minister's reassess- ments for 2012 and 2013 taxation years were allowed with costs. Morrissey v. Canada (2019), 2019 CarswellNat 856, 2019 FCA 56, M. Nadon J.A., D.G. Near J.A., and Mary J.L. Gleason J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 10621, 2016 CarswellNat 3634, 2016 TCC 178, 2016 CCI 178, Don R. Som- merfeldt J. (T.C.C. [Informal Procedure]). Federal Court Criminal Law ADMISSIBILITY OF PRIVATE COMMUNICATIONS authoRization Affiants provided sufficient facts to justify belief that individuals might be involved in threat In investigations by Canadian Security Intelligence Service (CSIS) into activities believed to constitute threat to security of Canada, applications by CSIS for warrant powers to obtain ba- sic identification data (BII) from communication service provid- ers were dismissed. CSIS applied for same warrant powers in several new cases. Applications granted. Deficiencies in prior applications had been overcome. Court could not authorize CSIS to obtain BII in respect of com- munication accounts corre- sponding to telephone numbers or electronic identifiers that might in future come to its atten- tion in course of investigation. Request to obtain such warrant power required CSIS to describe and establish specific nexus to investigations or to propose al- ternate approaches, in view of potential delays adversely af- fecting investigative ability, that were compliant with Canadian Charter of Rights and Freedoms. CSIS provided essentially same information provided in inter- nal forms seeking authorization within organization to request BII powers from court, which described nexus between inves- tigation and telephone numbers or electronic identifiers in re- spect of which BII were sought. CSIS's affiants provided suffi- cient facts to justify belief that individuals behind electronic identifiers might be involved in threat posed or able to provide information to assist in inves- tigation into that threat, in affi- davit and during oral testimony. Applications were each sup- ported by ministerial approval and designation of affiant. In urgent and exceptional circum- stances, when it was not possible to obtain ministerial approval in writing, there would have to be undertaking to provide such approach in writing and confir- mation that it had been provided orally. Several motions seek- ing to amend warrants by add- ing BII were abandoned before judgment was rendered. X (Re) (2018), 2018 Carswell- Nat 7377, 2018 CarswellNat 7378, 2018 FC 874, 2018 CF 874, Paul S. Crampton C.J. (F.C.). Tax INCOME TAX administRation and enfoRcement Judge did not have jurisdiction to review officer's letter as it was not evidence of " decision" Canada Revenue Agency (CRA) notified taxpayer of proposed reassessments for ten years pur- suant to s. 152(4) of Income Tax Act. Prior to issuance of reas- sessments, which were delayed awaiting representations from taxpayer, taxpayer filed no- name application in voluntary disclosure program (VDP). CRA dismissed VDP application be- cause it was not voluntary. Tax- payer requested internal review of decision of Minister of Na- tional Revenue (second level VDP application review). CRA officer sent letter to taxpayer with proposed reassessment and granted him time to make ad- ditional representations. CRA had not yet reassessed taxpayer or decided second-level VDP application review. Taxpayer brought application for judicial review of officer's letter. Appli- cation dismissed. Judge did not have jurisdiction to review offi- cer's letter as it was not evidence of "decision" within meaning of s. 18.1(3) of Federal Courts Act. Letter was fairness letter pro- viding taxpayer with opportu- nity to provide submissions as to why reassessment should not be made. Prince v. Canada (National Revenue) (2019), 2019 Carswell- Nat 801, 2019 FC 348, Peter An- nis J. (F.C.). Tax Court of Canada Pensions FEDERAL AND PROVINCIAL PENSION PLANS fedeRal pension plans Funding for work performed as teaching assistant not received primarily for self- directed furthering individual's educational studies Individual received offer from University for admission to Master of Arts Program and was offered funding for first year of program in amount of $12,000.00 made up of combi- nation of two teaching/research assistantships and graduate entrance scholarship. Trust Ac- counts Examination was con- ducted on books and records of University and employment ruling was requested to deter- mine if amounts received by individual were insurable and pensionable. Ruling was issued which found that individual was engaged in insurable and pensionable employment for period of September 1, 2010 to April 24, 2011 in respect of amounts received to provide services as teaching assistant. Ruling further found that in- dividual was not engaged in insurable and pensionable em- ployment for period August 1, 2010 to December 31, 2011 in respect to amounts received by individual for scholarship amount. Individual's appeal of ruling to Minister of National Revenue was dismissed, and ruling was upheld. Individual appealed Minister's decision. Appeals dismissed. At outset of hearing, Minister advised that $4,000.00 of total $12,000.00 amount at issue was non-tax- able scholarship amount re- ceived in his capacity as student. Dominant purpose of $8,000.00 funding amount was remu- neration for services performed and not for student assistance. Funding amount paid for work performed as teaching assistant could not be considered funds received primarily for self-di- rected furthering individual's educational studies. $8,000.00 funding amount was intimately connected to work as teaching assistant. There was clear nex- us between that payment and work completed by individual. Although individual's stated perception was that he was per- forming work as quid pro quo in respect of funding, evidence adduced did not support that impression. Rooke v. M.N.R. (2019), 2019 CarswellNat 608, 2019 Carswell- Nat 688, 2019 TCC 52, 2019 CCI 52, Diane Campbell J. (T.C.C. [Employment Insurance]). Tax INCOME TAX administRation and enfoRcement Corporation could not appeal in person and must be represented by lawyer in general procedure appeal Earlier motions by taxpayers to be represented by their char- tered professional accountants were denied for reason that s. 17.1 of Tax Court of Canada Act requires that corporations be represented by counsel in general procedure case as cor- porations are unable to appear in person. Taxpayers did not ap- peal that decision. In these gen- eral procedure appeals, taxpay- ers brought motions to be rep- resented by their presidents and directors who were not lawyers. Motions dismissed. In decision on same subject made earlier this year, judge's reasoning that corporation could not appeal in person and must be represented by lawyer in general procedure appeal by virtue of s. 17.1 was agreed with. For same reason given by judge on first motions and in earlier decision motions were dismissed. As well, R. 30(2) would leave matters in judge's discretion including as to condi- tions that may apply with respect to any particular representative in any particular case. Masa Sushi Japanese Res- taurant Inc. v. The Queen (2018), 2018 CarswellNat 2886, 2018 Car- swellNat 7349, 2018 TCC 98, 2018 CCI 98, Patrick Boyle J. (T.C.C. [General Procedure]). Case Law 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. These cases may be found online in WestlawNext Canada. To subscribe, please access or call 1-800-387-5164. Case Law Legal News at Your Fingertips Sign up for Canadian Legal Newswire today for free and enjoy great content. Visit newswire-subscribe ntitled-1 1 2019-01-24 9:56 AM

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