Law Times

November 24, 2008

The premier weekly newspaper for the legal profession in Ontario

Issue link:

Contents of this Issue


Page 0 of 15

McKELLAR STRUCTURED SETTLEMENTS INC. 1-800-265-8381 ealogical-EAR_LT_Nov17_08.indd 1 $3.55 • Vol. 19, No. 37 11/11/08 2:36:29 PM Covering Ontario's Legal Scene ing out of Canada, or refusing to do busi- ness here rather than turn over customer records, Ontario tax lawyers warn. The ruling allows the minister of national revenue to compel Canadian- based companies to turn over electronic customer records so the government can look for evidence of tax fraud. Adding to the powers is the ability to ask for re- cords that are held offshore by affiliates so long as the Canadian company can access those records. The only other test says Bill Innis, tax litigator with Fraser Milner Casgrain LLP, is to allow the minister to "verify compliance with the (tax) act. "The ramifications of [the ruling] he recent eBay Canada Ltd. et al v. Minister of National Revenue rul- ing could lead to companies pull- eBay could trigger foreign pullouts T Taxman gains extraordinary access to offshore records BY ROBERT TODD & KELLY HARRIS Law Times are potentially enormous," Innis tells Law Times. "The world is so wired these days, using this decision you'd think that there would be very, very lit- tle foreign-based information that the government couldn't get and extremely easily compel people on the force of criminal action to produce." This, says Innis, could lead to com- panies thinking twice before doing business in Canada. "By giving me ac- cess to their computer system, anything I can access the Canadian government can access, are they going to have second thoughts about Matthew Latella says the ability to access data was a 'determining factor' in the eBay case. dealing with me?" asks Innis. "You could see, for example, eBay getting really worried about selling through Canada." Baker & McKenzie LLP lawyer Matthew Latella suggested that the appeal court seemed not to apply that legal principle in the decision. "At the end of the day, I think one of the legacies of this case will be that the specific foreign-based information provision, because of the approach taken in this case, will now atro- phy, and you will not see the [Canada Revenue See Content, page 2 Youth report: Ontario at 'crossroads' D BY ROBERT TODD Law Times Joseph Neuberger says reviews are important because it 'forces people' to look at the legislation. TitlePlus_LT_Nov24_08 11/18/08 11:37 AM Page 1 espite critics' insistence that a report on the roots of youth violence in Ontario will simply gather dust, a criminal defence lawyer says the review by former Ontario chief justice Roy McMurtry and ex-diplomat Alvin Curling is exactly what's needed to spur government action. "Reviews like this are important, because it forces people to look at the legislation, to look at reality in what is going on in our courts, and sometimes to come up with very meaningful recommendations, which I think are listened to by the government," says Joseph Neuberg- er, who is acting as counsel for the province in the Cornwall inquiry into sexual abuse allegations. view of the Roots of Youth Vio- lence offered the province 30 ma- jor recommendations, and found that youths often turn to violence due to a combination of factors such as poverty, racism, a lack of cultural sensitivity in schools, alienation, and low self-esteem. Cited as key recommendations McMurtry and Curling's Re- were a call for $200 million for youth mental health services, the collection of race-based statistics, the creation of community hubs, and the cre- ation of a cabinet committee. The review was set up in June 2007 following the school-shoot- ing death of 15-year-old Jordan Manners in Toronto. "We strongly believe Ontario is at a crossroads in dealing with the roots of violence involving youth," said McMurtry in a prepared statement. To ensure your clients get the most comprehensive coverage in one title insurance policy, take a look at the TitlePLUS Program , your Bar-related real estate partner! ® PROTECTION AS GOOD AS IT GETS Together we have all the tools 1-800-410-1013 1 Please refer to the policy for full details, including actual terms and conditions. The TitlePLUS policy is underwritten by Lawyers' Professional Indemnity Company (LAWPRO®). Contact LAWPRO for brokers in Saskatchewan, Manitoba, Alberta and Québec. TitlePLUS policies issued with respect to properties in Québec and OwnerEXPRESS® policies do not include legal services coverage. ® TitlePLUS, the TitlePLUS logo, OwnerEXPRESS and LAWPRO are registered trademarks of Lawyers' Professional Indemnity Company. ® BAR-RELATED Mark is a registered Mark of North American Bar Related Title Insurers used by LAWPRO under License. ® 1 Latella, who acted as counsel for the appel- lants — including eBay Canada Ltd. — in the case, said the ability to access data was a "de- termining factor," and that the decision will be applied beyond the tax realm. Specifically, he said, the court's decision that the facts of the case didn't engage s. 231.6 of the Income Tax Act will have wider ramifications. Parliament created the section, noted Latella, to apply to requirements for any "person resident in Canada or non-resident person carrying on business in Canada" for the production of "any information or docu- ment that is available or located outside Canada." But the Federal Court of Appeal in eBay found that the "mere ability to access data was sufficient to consider that data to be 'located' in Canada," said Latella. Latella, who last week discussed the case at the Canadian Law & Technology Forum conference in Toronto, noted that a legal doctrine exists suggesting that "if there is a specific provision and a general provision, and the interpretation of the general pro- vision taken at its most expansive would leave the specific provision with nothing left to do, that's not the appropriate way to approach the statute." ckellar_LT_Jan14_08.indd 1 November 24, 2008 1/8/08 3:03:02 PM Inside This Issue 5 Lipton Makes A Move 7 Queen's Park 9 Focus On Environmental Law Quote of the week "Many lawyers want to remain vitally engaged in doing something worthwhile." — Linda Robertson, lawyer Phoenix Legal Inc. See Some, page 4 "Our report presents the govern- ment with a comprehensive frame- work to address the serious trends we have identified, and that will have serious consequences if allowed to continue unchecked," he said. While the report didn't focus specifically on the justice system's role in youth violence issues, Neuberger suggested the prov- ince's cash-starved legal aid system makes it difficult for lawyers to do more for young clients caught up in patterns of violence. "For the majority of young of- fenders, their cases are defended on legal aid, and legal aid is a chroni- cally underfunded, underappreci- ated system," he says, adding the system does the best it can with available resources. "On legal aid you're limited in terms of how See Race, page 2

Articles in this issue

Links on this page

Archives of this issue

view archives of Law Times - November 24, 2008