Law Times

Law Times • sepTember 3, 2018 Page 17 www.lawtimesnews.com Supreme Court of Canada Civil Practice and Procedure DISCOVERY Discovery of documents Health care databases containing coded health care information not compellable British Columbia enacted Tobac- co Damages and Health are Costs Recovery Act and sued P Inc. and other tobacco manufacturers to recover cost of health care benefits on aggregate basis. P Inc. applied for production of collection of health care databases containing coded health care information which Province said it intended to use for purpose of proving causation and damages in ac- tion. Application was allowed and Province appealed. Appeal was dismissed and Province appealed. Finding of courts below that data- bases were not protected by s. 2(5) (b) of Act was marked by three errors. They failed to examine scope of documents and records that were protected by s. 2(5)(b), they permitted relevance of data- bases, to supplant text of s. 2(5)(b) and they treated phrase "particu- lar individual insured persons" as synonymous with "identifiable individual insured persons". Mere alteration of method by which that health care information was stored did not change nature of information itself. Even in aggre- gate form, databases remained "health care records and docu- ments of particular individual insured persons". Irrespective of their relevance, such records and documents that fall within scope of s. 2(5)(b) were not compellable. British Columbia v. Philip Morris International, Inc. (2018), 2018 CarswellBC 1840, 2018 CarswellBC 1841, 2018 SCC 36, 2018 CSC 36, Abella J., Moldaver J., Karakatsanisn J., Gascon J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2017), 2017 CarswellBC 369, 2017 BCCA 69, Newbury J.A., Willcock J.A., and Goepel J.A. (B.C. C.A.). Construction Law BONDS AND SURETIES Bonds Contractor committed breach of trust by failing to inform subcontractor of labour and material payment bond Defendant company was gen- eral contractor on energy proj- ect. Defendant entered into subcontract with L Ltd., which required L Ltd. to obtain labour and material payment bond. L Ltd. obtained bond describing L Ltd. as principal, bond issuer as surety, and defendant B as obli- gee. Plaintiff company V entered into subcontract with L Ltd. but was not fully paid for its services. V claimed on subject bond, but bond issuer denied claim on basis that plaintiff had not pro- vided timely notice as required under subject bond. V took po- sition that B, as trustee under subject bond, had obligation to inform V of subject bond's existence. Defendant's applica- tion for summary dismissal was granted and plaintiff 's action was dismissed. Appeal was al- lowed as to indemnity costs. Ap- peal to Supreme Court of Cana- da allowed. B committed breach of trust by failing to inform V of bond, or take steps to ensure it would come to V's attention. Where evidence was that labour and material payment bonds were uncommon, something more than filing bond off-site was required from B to dis- charge its duty. As no evidence what sum of money was avail- able on bond at any time during V's 120-day notice period fol- lowing last day on project matter remitted to trial judge. Valard Construction Ltd. v. Bird Construction Co. (2018), 2018 CarswellAlta 261, 2018 Car- swellAlta 262, 2018 SCC 8, 2018 CSC 8, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellAlta 1584, 2016 ABCA 249, Patricia Rowbotham J.A., Thomas W. Wakeling J.A., and Frederica Schutz J.A. (Alta. C.A.). Criminal Law APPEALS Appeal from conviction or acquittal Complainant's evidence accepted even though accused's testimony withstood cross-examination Accused was convicted of sexual interference, invitation to sex- ual touching and sexual assault with trial judge staying sexual assault and invitation to sexual touching pursuant to Kienapple principles. Seven-year-old com- plainant spontaneously told her mother that she had seen ac- cused's bird, he had tried to put it in her mouth, she had shaken it and white stuff had come out. Accused had been in relation- ship with mother and had lived with mother and complainant. Mother claimed that bird was used by her and complainant to refer to both male and female genitals. At trial, accused and complainant both testified and even though trial judge noted accused had testified in straight- forward manner, was non-eva- sive, had not exaggerated, embel- lished or coloured his evidence and had withstood cross-exam- ination without blemish, com- plainant's evidence was accepted in its entirety. Trial judge char- acterized alternate explanations of complainant's knowledge of penis and act of masturbation as possibilities. Accused appealed and appeal was dismissed. Ac- cused appealed further. Appeal dismissed. Majority of Court dismissed appeal, substantially for reasons of majority of the Court of Appeal. R.A. v. Her Majesty The Queen (2018), 2018 CarswellOnt 4723, 2018 CarswellOnt 4724, 2018 SCC 13, 2018 CSC 13, Mol- daver J., Karakatsanis J., Gascon J., Côté J., and Rowe J. (S.C.C.); af- firmed (2017), 2017 CarswellOnt 14114, 2017 ONCA 714, E.E. Gil- lese J.A., Grant Huscroft J.A., and G.T. Trotter J.A. (Ont. C.A.). Federal Court of Appeal Tax INCOME TAX Capital gains and losses Intention to hedge was not condition precedent for hedging Hedging instrument. Taxpayer made cash settlement payments in settlement of forward con- tract, which was bet against price of his common shares in bank. Taxpayer treated cash settle- ment payments as being on in- come account under s. 9(1) of In- come Tax Act and claimed busi- ness losses. Minister of National Revenue reassessed taxpayer on basis that payments were made on account of capital and result- ed in capital losses. Tax Court judge allowed taxpayer's appeal. Judge held that cash settlement payments were payments made on income account resulting in business losses. Judge first held that forward contract was entered into by taxpayer as ad- venture or concern in nature of trade as speculative instrument. Judge then held that taxpayer did not hedge capital asset of his bank shares when he entered into forward contract because he did not have intention to hedge and there was no link between forward contract and ownership of or transaction in respect of shares. Minister appealed. Ap- peal allowed and Minister's re- assessments confirmed. Taxpay- er's shares were capital property, so if forward contract had effect of hedging risk linked to those shares, losses would be treated as capital losses. Taxpayer was aware of hedging effect which forward contract would have on his shares. Judge erred in law in not following binding prece- dent defining hedge in Supreme Court of Canada judgment (PD judgment). Based on test in PD judgment, forward contract was hedging instrument since it neutralized or mitigated risk to which underlying asset of shares was exposed. Intention to hedge was not condition precedent for hedging. Judge erred in distin- guishing GW judgment on basis that taxpayer had no owner- ship risk to hedge. As taxpayer's shares were exposed to risk, judge ought to have concluded that that risk was mitigated by forward contract. The Queen v. Macdonald (2018), 2018 CarswellNat 3400, 2018 CarswellNat 3823, 2018 FCA 128, 2018 CAF 128, Marc Noël C.J., Pelletier J.A., and de Montigny J.A. (F.C.A.); reversed (2017), 2017 CarswellNat 3934, 2017 CarswellNat 9106, 2017 TCC 157, 2017 CCI 157, Domi- nique Laf leur J. (T.C.C. [General Procedure]). Federal Court Tax INCOME TAX Administration and enforcement Taxpayer's post-traumatic stress disorder not so severe that he was unable to pay tax debt Waiver of penalties and interest. Canada Revenue Agency (CRA) 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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