Law Times

Law Times • augusT 6, 2018 Page 17 www.lawtimesnews.com Supreme Court of Canada Criminal Law SENTENCING PROCEDURE AND PRINCIPLES Principles of sentencing Court erred in holding that vigilante violence inf licted on accused could not be considered in sentencing Accused drove his vehicle onto restaurant patio, killing two- year-old child. Police demanded breath sample after accident but accused refused. Accused was later abducted by vigilantes who cut off his thumb with prun- ing shears for his role in child's death. Accused eventually plead- ed guilty to refusing to provide breath sample after causing acci- dent resulting in death. Sentenc- ing judge imposed 4-month sen- tence of imprisonment coupled with 30-month driving prohibi- tion. Court of Appeal allowed Crown appeal from sentence and increased custodial portion of it to 26 months. Accused appealed sentence with Supreme Court of Canada. Appeal allowed in part, and sentence of 26 months' im- prisonment imposed by Court of Appeal replaced with one of time served. Both sentencing judge and Court of Appeal com- mitted errors in principle in ar- riving at sentences they imposed and errors resulted in imposition of unfit sentences. Court of Ap- peal erred when it recast circum- stances of accident and effectively sentenced accused for uncharged offence of careless driving or dangerous driving causing death, and when it held that vigilante vi- olence inf licted on accused could not be considered when crafting appropriate sentence. Sentencing judge erred in finding that ac- cused was acting under mistake of law when he refused to provide breath sample and that this fac- tor fundamentally changed his moral culpability. R. v. Suter (2018), 2018 Car- swellAlta 1266, 2018 CarswellAl- ta 1267, 2018 SCC 34, 2018 CSC 34, Abella J., Moldaver J., Kara- katsanis J., Wagner J., Gascon J., Côté J., and Rowe J. (S.C.C.); re- versed (2016), 2016 CarswellAlta 1461, 2016 ABCA 235, Jack Wat- son J.A., Myra Bielby J.A., and Frederica Schutz J.A. (Alta. C.A.). Real Property EXPROPRIATION Procedure on expropriation Replacement of bylaw not having effect of restarting computation of time Owner purchased lot located on territory of municipality, intend- ing to eventually subdivide lot for residential construction. Follow- ing adoption, in 1991, of bylaw by municipality, most of owner' lot became part of conservation zone in which authorized uses were limited to recreational and leisure activities. Majority shareholder of owner only became aware of existence of bylaw in 2001. In 2005, regional county municipal- ity (RCM) adopted similar bylaw. In 2007, owner brought action in nullity, alleging that it had been victim of disguised expropria- tion. Owner's action in nullity was dismissed by trial judge on ground that it had not been in- stituted within reasonable time. Owner appealed that decision to Quebec Court of Appeal, which concluded that trial judge had failed to consider that appellants' adoption of contested bylaws rep- resented abuse of power. Court of Appeal set aside decision and declared that bylaws were inoper- able in respect of owner. Munici- pality and RCM appealed. Appeal allowed. Action to annul munici- pal bylaw for abuse of power must be instituted within reasonable time. Here, evidence showed that impugned bylaw was adopted in 1991. Replacement of municipal- ity's bylaw with bylaw adopted by RCM did not have effect of restarting computation of time. Thus, 16 years elapsed between adoption of impugned bylaw and its being contested in court. In addition, time that elapsed after owner's majority shareholder had acquired factual knowledge of bylaw was at least 5 years. Given discretionary nature of Superior Court power of judicial review, that 5-year period was in itself sufficient for trial judge to dismiss action in nullity for being out of time. Therefore, trial judge's deci- sion should be restored. Lorraine (Ville) c. 2646-8926 Québec inc. (2018), 2018 Car- swellQue 5527, 2018 CarswellQue 5528, 2018 SCC 35, 2018 CSC 35, Wagner C.J.C., Abella J., Mol- daver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2016), 2016 CarswellQue 10477, 2016 CarswellQue 11002, 2016 QCCA 1803, Julie Dutil J.C.A., Mark Schrager J.C.A., and Étienne Par- ent J.C.A. (C.A. Que.). Federal Court Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans Social Security Tribunal Appeal Division only had jursidiction to amend or rescind prior decisions where new material facts were presented Taxpayer successfully applied for Canada Pension Plan (CPP) disability pension but taxpayer disputed date of onset of disabil- ity and pursued multiple reviews and appeals to have issue recon- sidered. Most recently, taxpayer brought application for leave to appeal decision of Social Security Tribunal General Division (SST- GD), which rejected his applica- tion on basis that it lacked juris- diction over application. Social Security Tribunal Appeal Divi- sion (SST-AD) rejected taxpayer's application for extension of time and leave to appeal SST-GD deci- sion. Taxpayer brought applica- tion for judicial review. Applica- tion dismissed. It was found that even though SST-AD decision could have been clearer in ad- dressing underlying basis of SST- GD decision, reasons clearly con- cluded that appeal did not have reasonable chance of success. SST-GD's decision to deny ap- plication was based on absence of jurisdiction, because it only had jurisdiction to amend or rescind prior decisions where new mate- rial facts had been placed before it. In this case, no new evidence had been provided by taxpayer. SST-AD's decision, when read in light of record, explains basis for decision and was within range of acceptable outcomes. Andrews v. Canada (Attor- ney General) (2018), 2018 Car- swellNat 2891, 2018 CarswellNat 3228, 2018 FC 606, 2018 CF 606, Patrick Gleeson J. (F.C.). Tax Court of Canada Tax INCOME TAX Foreign income Certain rules existed as tie- breakers within Canada-US Tax Treaty concerning residency Taxpayer was employed in state of Massachusetts until Decem- ber 2012 and still owned house there, and from and after October 31, 2009 taxpayer owned house in Nova Scotia. Sometime after April 9, 2013, taxpayer requested withdrawal of $696,309.38 (USD) from his U.S. 401(k) retirement fund and in U.S., federal and state income taxes of $139,261.88 (USD) and $36,556.24 (USD) were withheld. Taxpayer received sum of $495,325.03 sometime immediately following May 6, 2013 and made final re-entry to Canada on May 9, 2013. In his 2013 T1 tax return, taxpayer re- ported "net foreign business in- come" of $727,136.44 and claimed $265,026.30 non-business income foreign tax credit, as well as "other deductions" of $338,831.18. Min- ister originally denied credits and deductions but subsequently reas- sessed to allow foreign tax credits of $176,609.30, maintaining that taxpayer was subject to Canadian income tax. Taxpayer appealed. Appeal allowed. "Counter deem- ing" provisions of s. 250(5) of In- come Tax Act were potentially applicable. Certain rules existed as tie-breakers within Canada-US Tax Treaty concerning residency. Period in issue was period sur- rounding May 6, 2013. Taxpayer's habitual mode was in U.S. on or before May 9, 2013. As dual treaty resident, taxpayer was resident of U.S. and not Canada by virtue of application of tie-breaker rule in s. 2(b) of Article IV of Treaty and as such income from 401(k) pro- ceeds were not taxable in Canada under Act. Davis v. The Queen (2018), 2018 CarswellNat 2997, 2018 TCC 110, Randall S. Bocock J. (T.C.C. [General Procedure]). INCOME TAX Tax credits Taxpayer failed to provide evidence or opinion on how values could be extrapolated back to decade ago Taxpayer donated 21 bottles of wine made up of different la- CASELAW Caselaw 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 carswell.com or call 1-800-387-5164. CASELAW Containing contact information for more than 66,000 judges and legal professionals, more than 27,500 law offices, government departments, and law related offices, canadianlawlist.com attracts more than 325,000 page views a month and 110,000 unique visitors! Book your enhanced listing today! Contact Colleen Austin at 416.649.9327 or colleen.austin@tr.com www.canadianlawlist.com Enhance your presence on Canada's largest legal directory AVAILABLE ONLINE AND IN PRINT Untitled-3 1 2018-07-31 3:28 PM

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