Law Times

Law Times • augusT 20, 2018 Page 13 www.lawtimesnews.com Supreme Court of Canada Criminal Law OFFENCES AGAINST THE ADMINISTRATION OF LAW AND JUSTICE Corruption Actual inf luence was not necessary to find accused guilty of inf luence peddling Appellant accused was origi- nally charged with inf luence peddling. Charges related to accused's use of government contacts, to help company sell water treatment systems. Com- pany promised to pay commis- sion to accused's girlfriend, for all systems sold to First Nations buyers. Accused spoke to gov- ernment officials, with aim of selling products in First Nations communities. At trial, accused was found not to have commit- ted fraud upon government. Tri- al judge highlighted autonomy of First Nations communities in procuring systems, without need for government approval. Crown appealed successfully from this judgment. Majority of appeal court found that trial judge erred, in confining scope of analysis to transactions where government was party. Accused appealed to Supreme Court of Canada. Appeal dismissed. Applicable Criminal Code sec- tion applied to both actual and perceived government integrity. Subject offence was complete once benefit was demanded, in exchange for promise to exercise inf luence. Actual inf luence was not necessary to find accused guilty of offence. Although gov- ernment did not have role that accused claimed it had, role could have changed. Accused had belief that sale of company's products to First Nations could be facilitated by government. Appearance of government in- tegrity was undermined. R. v. Carson (2018), 2018 Car- swellOnt 4487, 2018 CarswellOnt 4488, 2018 SCC 12, 2018 CSC 12, McLachlin C.J.C., Abella J., Mol- daver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2017), 2017 CarswellOnt 5574, 2017 ONCA 142, Janet Simmons J.A., G. Pardu J.A., and B.W. Mill- er J.A. (Ont. C.A.). Human Rights PAY EQUITY LEGISLATION Miscellaneous Certain provisions of regime establishing periodic review of maintenance of pay equity had discriminatory impact In 1996, Quebec adopted leg- islative scheme to address sys- temic wage discrimination against women. After 10 years, it replaced scheme with a sys- tem of mandatory audits every five years. Several unions chal- lenged amendments, claiming that they violated s. 15 of Ca- nadian Charter of Rights and Freedoms. Trial judge held that provisions of amending act that introduced periodic mainte- nance review were not uncon- stitutional. However, trial judge held that certain sections of new legislative scheme, which denied retroactive payments and failed to require that audit posting include specific date, breached s. 15 of Charter. Que- bec Court of Appeal confirmed trial judge's decision. Attorney General of Quebec appealed and unions cross-appealed. Appeal and cross-appeal dismissed. It was open to Quebec to opt for regime establishing periodic review of maintenance of pay equity However, it was obvious that certain provisions of new legislative scheme had discrimi- natory impact. Those provisions constituted prima facie infringe- ment of s. 15 of the Charter. Those provisions did not mini- mally impair right to be free from discriminatory compen- sation. Those provisions' harms far outweighed their benefits. Therefore, provisions in ques- tion were unconstitutional. Québec (Procureure gé- nérale) c. Alliance du personnel professionnel et technique de la santé et des services sociaux (2018), 2018 CarswellQue 3616, 2018 CarswellQue 3617, 2018 SCC 17, 2018 CSC 17, McLach- lin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellQue 9477, 2016 QCCA 1659, Rochette J.C.A., and Gagnon J.C.A. (C.A. Que.). Federal Court of Appeal Tax INCOME TAX Administration and enforcement Discretionary taxpayer relief provisions give Minister broad discretion to override strict filing requirements Corporate taxpayer B failed to file returns due to its principal's medical problems. B made vol- untary disclosure but Minister denied claims for dividend re- funds for the 2003 to 2011 taxa- tion years. B applied for relief from Minister under discretion- ary taxpayer relief provisions in s. 220(2.1) and (3) of Income Tax Act. Minister denied request. B's application for judicial review to Federal Court was dismissed for lack of jurisdiction and B ap- pealed. Appeal allowed. Federal Court was incorrect in deciding that Tax Court had exclusive ju- risdiction to decide questions involving interpretation of Act. No evidence that Minister gave any consideration to request for a waiver pursuant s. 220(2.1). No decision for court to review concerning waiver application. Application remitted to Minis- ter. Section 220(3) gives Minis- ter broad discretion to override strict filing requirements in oth- er provisions. Where provision provides relief to taxpayers, such as s. 220(3), provision should be given effect unless quite clear that Parliament intended other- wise. Not clear that 1994 amend- ments made s. 220(3) of Act in- applicable to dividend refunds. Bonnybrook Industrial Park Development Co. Ltd. v. Canada (National Revenue) (2018), 2018 CarswellNat 3731, 2018 FCA 136, David Stratas J.A., Judith M. Woods J.A., and D.G. Near J.A. (F.C.A.); reversed (2017), 2017 CarswellNat 3055, 2017 CarswellNat 6560, 2017 FC 642, 2017 CF 642, Douglas R. Campbell J. (F.C.). Federal Court Civil Practice and Procedure DISPOSITION WITHOUT TRIAL Stay or dismissal of action Balance to be struck between avoiding needless expenditure of public resources in likely event matter became moot Applicant was employee in unionized workplace who paid union dues to labour organiza- tion under s. 149.01 of Income Tax Act. In January 2017, ap- plicant filed application for ju- dicial review of December 2016 decision by Minister of National Revenue to waive reporting re- quirements for all labour organi- zations and labour trusts under Act for fiscal periods beginning in 2017. In February 2017, Minis- ter brought motion to strike out application, or in alternative, to hold matter in abeyance pending passage of Bill C-4, subsequent to which matter would be moot as relevant sections of Act would be repealed by bill. Prothonotary did not accept ground for mo- tion to strike but granted alter- nate relief, concluding that, al- though at time matter could not be declared moot, Parliament ex- pressed clear intention to repeal s. 149.01 of Act and that it was reasonable to believe that this would occur by July 1, 2017. Even in absence of challenged waiver by Minister, earliest any union or trust would be required to report under s. 149.01 of Act was July 1, 2017. Prothonotary concluded that by staying application until that date struck appropriate bal- ance between avoiding needless expenditure of resources in like- ly event that issue would become moot before any waiver took effect. Bill was passed in April 2017 and was returned to House of Commons for consideration of amendments. Applicant ap- pealed prothonotary's stay of ap- plication for judicial review until July 1, 2017. Appeal dismissed. Prothonotary did not err in law. As long as no party is unfairly prejudiced and it is in interests of justice, court should exercise its discretion against wasteful use of judicial resources. Prothonotary recognized that it was likely that by July 1, 2017, bill would have been passed, thereby repealing s. 149.01 of Act, and also rec- ognized significance of date of July 1, 2017 being that, even in absence of challenged waiver by Minister, this was earliest pos- sible date that any union or trust would be required to report un- der s. 149.01 of Act – Applicant could not suffer any prejudice before July 1, 2017. On practical level, applicant could not be prej- udiced by stay as she would not 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. 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