Law Times

Law Times • November 28, 2016 Page 15 www.lawtimesnews.com ada as member of source country class and he became permanent resident on January 25, 2011. Af- ghan passport was issued to OS on October 19, 2011 and he subse- quently took trips to Afghanistan. On November 6, 2013, Minister of Public Safety and Emergency Preparedness and Minister of Citizenship and Immigration filed application for order that OS's refugee status cease and be rejected on basis that he had reavailed himself of protection of his country of nationality. Refu- gee Protection Division (RPD) granted Minister's application, OS's claim for refugee protec- tion was deemed rejected, and thus OS ceased to be Convention refugee. Federal Court dismissed OS's application for judicial re- view. Appeal by OS dismissed. Appeal was heard on April 19, 2016 and judgment was reserved at end of hearing. On April 28 counsel for OS wrote to Court requesting opportunity to make representations with respect to decision rendered on April 27, 2016. On April 29 judgment was signed which dismissed OS's ap- peal with costs and judgment and reasons were sent to registry. OS brought motion for order setting aside judgment dismissing appeal of decision which had previously dismissed his application for ju- dicial review of decision by RPD. OS also sought order reconvening hearing of appeal before new pan- el or in alternative order pursuant to R. 397 setting aside that part of judgment which granted costs to Minister. Motion granted in part. 2004 Federal Court of Ap- peal judgment stood for proposi- tion that jurisprudence, whether existing prior to or after decision at issue, did not constitute "mat- ter" within meaning of R. 399(2) (a) of Federal Courts Citizen- ship, Immigration and Refugee Protection Rules. OS could not succeed on his request that judg- ment of April 29 be set aside or that hearing of appeal be recon- vened before new panel. OS was correct in making his submission on costs. No finding was made that there were special reasons to grant costs against OS. Rule 22 of Rules was simply overlooked and it was open to reconsider that part of judgment pursuant to R. 397(2). Siddiqui v. Canada (Min- ister of Citizenship and Im- migration) (2016), 2016 Car- swellNat 4974, 2016 FCA 237, M. Nadon J.A., Donald J. Ren- nie J.A., and Mary J.L. Gleason J.A. (F.C.A.); additional reasons (2016), 2016 CarswellNat 1681, 2016 FCA 134, M. Nadon J.A., Donald J. Rennie J.A., and Mary J.L. Gleason J.A. (F.C.A.). Tax Court of Canada TAX INCOME TAX Administration and enforcement Taxpayer's application for order extending time to file appeal was dismissed Taxpayer had filed income tax returns every year until 1998. Taxpayer's employment was ter- minated in 1999 and she received lump sum severance payment such that her annual income in- creased to about $151,000. Min- ister of National Revenue initially assessed taxpayer for 1999 to 2002 taxation years pursuant to s. 152(7) of Income Tax Act in 2004. In 2013, taxpayer filed her income tax returns for 1999 to 2012 taxa- tion years. Minister assessed tax- payer for 2003 to 2012 taxation years, and informed taxpayer that her request for assessment of 1999 to 2002 taxation years could not be considered as more than ten years had elapsed. Taxpayer brought application for extension of time to appeal assessments in respect of 1999 to 2012 taxation years in 2016, claiming she had intention to appeal. Application dismissed. Taxpayer was precluded from ob- jecting to notices of assessment is- sued in 2004 with respect to 1999 through 2002 taxation years, pur- suant to s. 165(1), 166.1(1), 166.2(1), 166.1(7)(a) and 166.2(5)(a) of Act because she did not file notice of objection, and did not make re- quest for reassessment within ten years from end of 2002. Even if taxpayer had bona fide intention to appeal within 90-day period in s. 169(1) of Act, her application was problematic. Taxpayer did not meet requirement set out in s. 167(5)(a) of Act by failing to per- fect notice of appeal within one- year time frame, and did not meet legal test set out in s. 167(5)(b) of Act. Taxpayer failed to file return for 1999 to 2002 years despite fact that she received lump sum sever- ance payment. It was not just and equitable to grant application and there were no reasonable grounds for appeal. Carpenter v. R. (2016), 2016 CarswellNat 4952, 2016 TCC 201, Guy R. Smith J. (T.C.C.). Minister disallowed claimed losses and imposed gross negligence penalties Taxpayer was auto worker, who participated on advice of tax pre- parer L in questionable donation program that led to significant tax refunds and, ultimately, re- assessment disallowing claimed donations and assessing penalties amounting to about $20,000. As L was not accountant, he brought in others, who turned out to be scammers, to resolve matter. Tax- payer signed 2009 tax return that, even though his only significant income was employment income, claimed huge net business losses and refund of about $14,000. Minister reassessed taxpayer, disallowing claimed losses and imposing gross negligence penal- ties. Taxpayer appealed. Appeal dismissed. Scammers prepared taxpayer's 2009 tax return, which contained patently false informa- tion. Had taxpayer looked at his return, he would have known that return contained blatantly false and fraudulent information . Minister clearly established that taxpayer made, assented to, par- ticipated in or acquiesced in mak- ing of false statements in tax re- turn in circumstances amounting to gross negligence. Taxpayer was wilfully blind as to falsity of con- tents of 2009 tax return. By not even looking at return, he chose to ignore would should have been obvious red f lags. Taxpayer was also grossly negligent by failing to make any efforts to verify accura- cy of tax return, as it was his duty to do and where his signature certified that information com- plete and accurate. Taxpayer, who was even willing to sign return in blank, showed wanton and reck- less disregard as to whether or not return was completed in compli- ance with law. Taxpayer could not avoid gross negligence penalty by placing blind faith and trust in tax preparers without taking at least some steps to verify correct- ness of information in tax return. Taxpayer failed miserably in duty to exercise care in completion of return and was properly subject to penalties imposed on him. Mayne v. R. (2016), 2016 Car- swellNat 5262, 2016 TCC 212, Rommel G. Masse D.J. (T.C.C. [General Procedure]). Ontario Civil Cases BUSINESS ASSOCIATIONS LEGAL PROCEEDINGS INVOLVING BUSINESS ASSOCIATIONS Practice and procedure in proceedings involv- ing corporations Motion to quash appeal for want of jurisdiction was dismissed Plaintiffs claimed defendants de- prived them of their interest in corporations. Claim was subject of bifurcation order whereby de- termination of plaintiffs' request for declarations as to their rights was split from their request for remedies related to any declared rights. Declaration was made that plaintiffs had one-third interest in corporations and in all monies, benefits and oppor- tunities withdrawn or diverted directly or indirectly from those corporations. Defendants were ordered to make interim pay- ments to plaintiffs pending later trial to determine what further remedies were available to plain- tiffs. Defendants appealed. Plain- tiffs brought motion to quash appeal for want of jurisdiction. Motion dismissed. Order un- der appeal was final. It was not appeal under Ontario Business Corporations Act to which s. 255 applied requiring appeal to Di- visional Court. Appeal was not devoid of merit. Buccilli v. Pillitter (2016), 2016 CarswellOnt 16393, 2016 ONCA 775, E.A. Cronk J.A., Paul Rouleau J.A., and Grant Huscroft J.A. (Ont. C.A.). EDUCATION LAW COLLEGES AND UNIVERSITIES Students Student union was not subject to Charter Applicants were university stu- dents who were members of pro- life organization seeking status as "student group." University's student union denied organiza- tion's final appeal to be granted "student group" status. Appli- cants applied for declarative relief quashing student union's decision. Application dismissed. It was not appropriate to exercise jurisdiction to review student union's decision. Student union was private corporation with broad powers to act indepen- dently. Student union's decision to grant or deny student group status was private decision by private entity, within its pow- ers to make, and which did not engage principles of administra- tive law. Student union was not subject to Canadian Charter of Rights and Freedoms. There was no basis for conclusion that student union failed to take into account applicant's rights to freedom of expression and association. To extent that stu- dent union had contractual ob- ligation to consider and decide applicants' request fairly and in accordance with its own proce- dures, that obligation was fully discharged. Applicants were free to continue to associate and express themselves on univer- sity campus, holding meetings or events and raising funds for their cause. Grant v. Ryerson Students' Union (2016), 2016 CarswellOnt 15862, 2016 ONSC 5519, Stewart J. (Ont. S.C.J.). TORTS MALICIOUS PROSECUTION AND FALSE IMPRISONMENT Practice and procedure Costs were awarded to law society and four of its employees Plaintiff was lawyer who was subject of disciplinary proceed- ings, by defendant provincial law society. Law society originally revoked lawyer's license to prac- tice, with decision being over- turned by society's appeal panel. Lawyer brought action against law society and four of its em- ployees, for negligent investiga- tion, malicious prosecution, and misfeasance in public office. Law society and individual defen- dants moved to strike statement of claim. Action was partially dismissed, with claims for mali- cious prosecution and misfea- sance being struck with leave to amend. Law society and indi- vidual defendants sought costs of motion. Costs submissions made by both parties. Costs awarded to all defendants. Defendants were significantly successful on motion, given that all parts of claim were struck with or with- out leave. Although success was not total, it was at level entitling defendants to costs. Costs were payable in amount of $5,000 on partial indemnity basis. Robson v. Law Society of Upper Canada (2016), 2016 CarswellOnt 16462, 2016 ONSC 6647, Stephen Firestone J. (Ont. S.C.J.); additional reasons (2016), 2016 CarswellOnt 14303, 2016 ONSC 5579, Firestone J. (Ont. S.C.J.). Ontario Criminal Cases CRIMINAL LAW POST-TRIAL PROCEDURE Appeal from sentence Trial judge improperly recorded absence of remorse as aggravating factor Accused was sentenced to five years and three months im- prisonment. Accused appealed from conviction and sentence. Appeal allowed in part. On sentence appeal, accused was entitled to pre-trial custody credit on 1.5:1 basis. Trial judge explicitly, and improperly, re- corded absence of remorse as aggravating factor. Credit for 305 days of pre-sentence cus- tody awarded. On remorse is- sue, sentence reduced by three months, to five years. No is- sue arose with forfeiture order or order made under s. 161 of Criminal Code. Trial, includ- ing sentence, was completed under 30 month ceiling sug- gested in 2016 Supreme Court of Canada judgment, and did not breach s. 11(b) of Charter of Rights and Freedoms. R. v. Kidd (2016), 2016 Car- swellOnt 15971, 2016 ONCA 757, MacPherson J.A., Epstein J.A., and Lauwers J.A. (Ont. C.A.). EVIDENCE CONFESSIONS Voluntariness Confessions rule requires that oppressive conditions be caused or created by state Accused presented himself at police station and claimed to have burned down his mother's house. Police gave accused re- quired warnings and advised of right to counsel. On voir dire trial judge held confession to be inadmissible as involuntary as accused, who was homeless, made it in order to be sent to jail. Trial judge held that fact that accused was homeless meant that he was suffering under oppressive conditions. Accused was acquitted. Crown appealed. Appeal allowed and new trial ordered. No nexus between threat or promise and confession as accused came to police detachment with express purpose of confessing to arson. Act of supplying accurate factu- al information to accused does not constitute inducement. Trial judge found that conduct of police was "unimpeachable" and "blameless" so not possible that oppression was a factor. Under confessions rule oppres- sive conditions must be caused or created by state. R. v. Fernandes (2016), 2016 CarswellOnt 16289, 2016 ONCA 772, Doherty J.A., S.E. Pepall J.A., and C.W. Hourigan J.A. (Ont. C.A.). CASELAW

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