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June 4, 2018

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Law Times • June 4, 2018 Page 15 www.lawtimesnews.com tion GI. Taxpayer paid $30,000 US, equivalent to $46,667 Cdn, to organization in exchange for charitable donation receipt. Taxpayer gave amount in two payments, funded by loan from taxpayer's father-in-law. Several months later, deposit was made into same account that amounts were paid out of. Taxpayer claimed tax credit deductions for charitable donation over four years. Minister of National Revenue disallowed deduction on basis that amount did not constitute gift within meaning of s. 118.1 of Income Tax Act. Taxpayer appealed. Appeal dis- missed. Taxpayer's evidence was implausible and improbable, given unusually large amount, fact that taxpayer did not claim any charitable donation tax credit for previous 12 years, fact that amount paid was 75 per cent of family's net income, tax- payer's lack of financial where- withal and implausibility that he would borrow to donate, tax- payer's lack of due diligence in failing to independently inquire into organization's activities and financial statements, failure to follow up on what organization did with amount, and inability to explain deposit made into ac- count. Taxpayer gave amount to organization with intent and expectation of receiving tax credit and anticipated return of amount. Taxpayer did not prove that he paid amount with dona- tive intent, so amount did not constitute gift. Taxpayer was not entitled to tax credit deductions. Goheen v. The Queen (2018), 2018 CarswellNat 1276, 2018 TCC 62, K. Lyons J. (T.C.C. [General Procedure]). Ontario Civil Cases Business Associations SPECIFIC MATTERS OF CORPORATE ORGANIZATION Shareholders Fairest valuation date to value common shares was date of reasons on oppression application In action and oppression ap- plication, court considered na- ture of agreement between AC and CB relating to property CB owned through predecessor to 500 Ltd., which he wanted to develop. As result of agree- ment found to have existed, CB and AC's company C Corp. be- came shareholders of 500 Ltd.. It was found that AC, through C Corp., unfairly prejudiced CB and disregarded his interests in connection with 500 Ltd.. Op- pressive conduct consisted of C Corp.'s failure to discharge ex- isting mortgage it had assumed, improper registration of second mortgage, and failure to fund half of ongoing costs of 500 Ltd.. It was ordered, inter alia, that C Corp. sell its shares in 500 Ltd. to CB. Submissions were made on outstanding issues, including how to value C Corp.'s common shares to determine sale price. It was determined that preferable approach was to direct reference to master to determine price for sale of C Corp.'s shares to CB. It was premature to determine which valuation methodology was appropriate. Master was to take all necessary steps and make all necessary inquiries. Fairest valuation date to value common shares was date of rea- sons on oppression application; it ref lected AC's ongoing invest- ment into corporation and did not punish him for CB's failure to advance project. Bitton v. Checroune et al (2017), 2017 CarswellOnt 15276, 2017 ONSC 5542, J.T. Akbarali J. (Ont. S.C.J.); additional reasons (2017), 2017 CarswellOnt 6694, 2017 ONSC 2434, J.T. Akbarali J. (Ont. S.C.J.). Civil Practice and Procedure DISCOVERY Discovery of documents Master misapprehended relief being sought with respect to issue of delay Subcontractor brought motion for order requiring contractor and principal to deliver further and better affidavit of docu- ments. Motion dismissed but Master did not deal with issue of whether other defendants to produce other documents relevant to issue of delay. Sub- contractor appealed. Appeal al- lowed. Proposed fresh evidence comprising of emails was pro- duced by municipality in com- panion third party claim. Had fresh evidence been available and considered by Master more likely that settlement agree- ment would have been ordered to be produced. Evidence could not have been obtained by ex- ercise of reasonable diligence as subcontractor had no access to settlement. All settlement docu- mentation between defendants to be produced. Master misap- prehended relief being sought with respect to issue of delay. De- fendants to deliver further and better sworn affidavit of docu- ments forthwith that including documentation relevant to any alleged delay to the project. Accel Electrical v. City of Brampton (2018), 2018 Carswel- lOnt 6805, 2018 ONSC 2523, Ferguson J. (Ont. S.C.J.); varied (2017), 2017 CarswellOnt 18008, 2017 ONSC 6708, Master D.E. Short (Ont. S.C.J.). DISPOSITION WITHOUT TRIAL Dismissal for delay Rule 48.14 did not take precedence over Rule 24.01, nor did it oust jurisdiction of court Property owner operated power generation facility constructed by contractor in 1995-1996. Guarantor had guaranteed contractor's performance, and two sureties had issued perfor- mance bond. Two heat recovery steam generators supplied by subcontractor developed cracks by 2000. Owner commenced action in 2005 against contrac- tor, guarantor, and sureties for damages for negligence and breach of warranty. Contrac- tor and guarantor successfully brought motion for summary judgment dismissing claims re- lating to engineering services as statute-barred, with costs to be fixed by motion judge C. Proceeding became dormant without any costs determination being made by motion judge C, or by motion judge J relating to subsequent motion. Contractor, guarantor, and sureties success- fully brought motion for order dismissing action for delay and for costs, including in relation to prior motions. Action was dismissed pursuant to R. 24.01 and R. 48.14(1) of Rules of Civil Procedure and court's inherent jurisdiction, and parties were to make costs submissions dealing with outstanding costs issues. IF Power Corp. appealed. Appeal dismissed. Rule 48.14 did not take precedence over Rule 24.01, nor did it oust jurisdiction of court from dealing with any ac- tion that was subject to dismissal by registrar under Rule 48.14. Given that registrar had not dis- missed IF Power Corp.'s action under Rule 48.14, it was entirely open to respondents to proceed with motion under Rule 24.01 and for motion judge to exercise jurisdiction in accordance with that rule. Iroquois Falls Power Corp. v. Jacobs Canada Inc. (2018), 2018 CarswellOnt 6732, 2018 ONCA 412, J. MacFarland J.A., H.S. La- Forme J.A., and Gloria Epstein J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 15055, 2017 ONSC 5515, M.D. Faieta J. (Ont. S.C.J.). (Ont. C.A.); leave to appeal refused (2017), 2017 CarswellOnt 15974, 2017 ONSC 6187, Mario D. Faieta J. (Ont. S.C.J.). DISPOSITION WITHOUT TRIAL Settlement Motion to set aside settlement dismissed where settlement entered into by authorized person Parties were not-for-profit char- itable corporations that oper- ated Sikh Gurdwaras (Sikh tem- ples). Plaintiff temple, SGNSCB, commenced action against two defendant temples, RSS and SSRC after defaulting on repay- ment of loan. In 2015, parties reached settlement regarding repayment which was then con- verted into court order obtained on consent in February 2016. In November 2016, SSRC was un- successful on its motion to set aside settlement as motion judge concluded settlement was en- tered into by authorized Direc- tor of SSRC. Motion judge also pointed to fact that SSRC had legal representation through- out proceedings. Motion judge concluded there was no basis for her to exercise discretion as it was clear SSRC had borrowed monies in question and that set- tlement, by which most of mon- ies were to be repaid over time, was reasonable. SSRC appealed. Appeal dismissed. Conclusions reached by motion judge were entitled to deference. As SSRC failed to demonstrate motion judge made palpable and over- riding error, appellate interfer- ence was not available. Ample evidence supported conclusion that SSRC's Director had au- thority of Board of Director's to instruct lawyer to enter settle- ment agreement and failure to find evidence of authority was not fatal. Further evidence sup- porting discretion to not inter- fere was that SGNSCB agreed to take slight compromise in amount owed to effect settle- ment. There was nothing im- provident in settlement. had borrowed monies in question and that settlement, by which most of monies were to be re- paid over time, was reasonable. Sri Guru Nanak Sikh Cen- tre Brampton v. Rexdale Singh Sabha Religious Centre (2018), 2018 CarswellOnt 7613, 2018 ONCA 459, P. Lauwers J.A., M.L. Benotto J.A., and I.V.B. Nord- heimer J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 16291, 2017 ONSC 6252, Petersen J. (Ont. S.C.J.). LIMITATION OF ACTIONS Real property Father and son had not dispossessed non-parties or their businesses of possession Applicant couple and respon- dents who were father and son, were next-door neighbours. Couple's predecessor in title shared use of right of way, over laneway. Father's company ac- quired land in two parcels, and conveyed land to father. Fa- ther installed storage container against south wall of garage, on patch of land that couple claimed belonged to them. Couple ap- plied for injunction requiring fa- ther to remove storage container. Father cross-applied for declara- tion that he had acquired own- ership of land, by adverse pos- session. Application and cross- application both dismissed. Fa- ther's only claim to disputed land was through adverse possession. Others had made use of storage container, during claimed ad- verse possession period. Father and son had not dispossessed non-parties, or their business, of possession. Father did not intend this dispossession. Maas v. Oakes (2017), 2017 CarswellOnt 15172, 2017 ONSC 5568, Price J. (Ont. S.C.J.). Estates and Trusts ESTATES Actions involving personal representatives Court had power to make vesting order Testator died in 1990 and left three adjoining properties to his heirs. Executors settled estate wrongly believing that Planning Act prohibited transfer by Will of properties to separate beneficia- ries. Committee of Adjustment refused technical severance to re-establish three separate lots. Beneficiaries who held interests as tenants in common applied for vesting order re-establishing property as separate properties. Application dismissed without prejudice. Proposed severance appeared from limited material filed to contravene Act. Court had the power to make vesting order but court should use cau- tion in exercising its discretion where order would entail breach of Act. Court had insufficient in- formation in application under- stand why city found proposed severance of title to re-establish three lots would contravene Act. If application renewed city to be given notice and applicants to provide sufficient information for Court to understand city's position. Nobrega and Elder v. Trust- ees of the Estate of M. Gasp- arovich (2018), 2018 Carswel- lOnt 7532, 2018 ONSC 2901, Heather McArthur J. (Ont. S.C.J.). Evidence PRIVILEGE Privileged communications Plaintiff 's counsel abandoned any opposition to argument that affidavit was waiver of privilege Plaintiff 's solicitor filed affidavit in support of motion selectively disclosing privileged informa- tion. On defendant's motion Master ordered disclosure of plaintiff 's client file excepting docket entries and material sub- ject to litigation privilege. Plain- tiff appealed. Appeal dismissed. Plaintiff 's counsel, abandoned, with prejudice, any opposition to defendants' argument that af- fidavit was waiver of privilege. Plaintiff should not have ap- pealed something it conceded. Master was correct in exclud- ing dockets which represented overall scope of firm's retainer by plaintiff. Plaintiff appealed on ground that defendant's mo- tion was premature. No basis to challenge Master's hearing mo- tion when he did as timing was directed by judge in Civil Prac- tice Court. Court lacked juris- diction to review ruling made by fellow judge of Superior Court of Justice. Master awarded costs of $9,500 rejecting claim for partial indemnity costs of $26,120.26. Master mistakenly thought amount sought was for proceed- ing on consent under Simpli- fied Rules. Entire action was for return of deposit of $45,861.52. As proportionality was primary concern, costs awarded were reasonable. Canadian Appliance Source Inc. v. Utradecanada.com Inc. (2018), 2018 CarswellOnt 7391, 2018 ONSC 2960, E.M. Morgan J. (Ont. S.C.J.); affirmed (2017), 2017 CarswellOnt 12967, 2017 ONSC 4959, Master M.P. Mc- Graw (Ont. S.C.J.). CASELAW

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