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Page 14 September 17, 2018 • Law timeS www.lawtimesnews.com CASELAW Supreme Court of Canada Evidence PRIVILEGE Public interest immunity Standard for piercing informer privilege was innocence at stake test Several police officers were charged with crimes pertain- ing to alleged misconduct dur- ing Royal Canadian Mounted Police (RCMP) investigation into gang-related homicide that involved several dozen confiden- tial informers. Officers brought pre-trial application before judge for declaration that might reveal identity of confidential inform- ers, which was granted. Crown resisted application on grounds that officers could only reveal identity of confidential informers if they satisfied innocence at stake test, and after declaration granted, Crown, RCMP and confidential informer brought proceedings to determine whether communica- tions authorized constituted dis- closures within meaning of s. 37 of Canada Evidence Act. Judge found that she had jurisdiction to hear s. 37 objection but dismissed objection on basis of her initial ruling on officers' application. Crown, RCMP and confidential informer appealed rejection of s. 37 objection, which was dis- missed on basis that order that was appealed was civil rather than criminal in nature and appeals court also held that Crown could not object to declaratory order under s. 37 of Act, because it was not disclosure within meaning of that section. Crown, RCMP and confidential informer appealed. Appeals allowed. Application in this case was not brought un- der ordinary McClure process, instead officers sought pre-trial remedy of declaratory relief, re- lating not to scope of privilege, but rather to who was entitled to access information that everyone agrees was within scope and these anomalies led Crown to bring proceedings under s. 37 of Act. Standard for piercing informer privilege was innocence at stake test, which was accordingly oner- ous as set out in McClure and privilege should only be infringed where core issues going to guilt of accused were involved and there was genuine risk of wrongful con- viction. In this case, police officers at no time have argued that any privileged information in their possession met test nor that infor- mation relating to confidential in- formers was genuinely relevant to their defence. Crown was correct that innocence at stake paradigm applied in this case, because offi- cer's defence counsel were outside circle of privilege. R. v. Brassington (2018), 2018 CarswellBC 1916, 2018 Car- swellBC 1917, 2018 SCC 37, 2018 CSC 37, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.). Human Rights PAY EQUITY LEGISLATION Miscellaneous Pay equity delay for women employed in workplaces without male comparators was discriminatory Delay in implementing pay eq- uity scheme. Quebec legislature adopted Act designed to set out pay equity scheme for all pre- dominately female job classes. However, pay equity for work- places without male comparators had to be postponed for almost six years. Several unions chal- lenged that delay, arguing that it amounted to breach of s. 15(1) of Canadian Charter of Rights and Freedoms. Trial judge found that delay did not violate s. 15 as it was not based on sex, but rather on ab- sence of male comparator. Court of Appeal of Quebec confirmed trial judge's decision and unions appealed. Appeal dismissed. Six- year pay equity delay for women employed in workplaces without male comparators drew distinc- tion on basis of sex that was dis- criminatory. This amounted to a prima facie breach of s. 15(1) of Charter. However, delay in devel- oping and implementing cred- ible methodology was rationally connected to objective of creating possibility of effective remedy. Delay impaired equality rights as little as reasonably necessary to create possibility of effective rem- edy. Evidence showed that strat- egies for implementation were developed on multiple fronts. Evi- dence also showed that Quebec was not unreasonable in trying to keep delay within reasonable bounds. While delay was serious and regrettable, it had long-term benefit of resulting in Act's mean- ingful ability to address pay dis- crimination. Therefore, prima fa- cie breach was justified under s. 1. Centrale des syndicats du Québec c. Québec (Procureure générale) (2018), 2018 Car- swellQue 3614, 2018 CarswellQue 3615, 2018 SCC 18, 2018 CSC 18, 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 (2016), 2016 CarswellQue 1852, 2016 QCCA 424, St-Pierre J.C.A., Émond J.C.A., and Vézina J.C.A. (C.A. Que.). Federal Court of Appeal Tax INCOME TAX Capital gains and losses Subsidiary used credit under settlement to pay for transfer of property Wholly-owned subsidiary of tax- payer, acting as bare trustee for taxpayer, entered into lease agree- ment with province. Minutes of settlement provided that prov- ince owed subsidiary additional $2.4 million and that province granted option to subsidiary to purchase property, defined as lands and lease, for $2.4 million. Subsidiary exercised option to purchase property from province, except interest would be trans- ferred to another wholly-owned subsidiary, and surrendered lease to province. Minister reassessed taxpayer, disallowing taxpayer's deduction of $2.24 million as lease cancellation fee, on ground that that amount was paid to ac- quire interest in real property and was made on capital account. Tax Court judge dismissed taxpayer's appeal. Judge found that taxpayer had not paid lease cancellation fee to province based on taxpayer's failure to have witness from prov- ince testify, and found that lease- hold interest had merged with fee simple title. Taxpayer appealed. Appeal dismissed. If lease were surrendered immediately be- fore property was conveyed, this would not support finding that subsidiary paid anything other than $2.4 million purchase price as contemplated by option and would not support finding that lease cancellation fee of $2.24 mil- lion was paid. More likely result was that subsidiary purchased lands for $2.4 million and it was set-off against $2.4 million owing by province under minutes of set- tlement. If transactions occurred simultaneously, this did not sup- port finding that lease cancella- tion fee was paid. Judge did not err in concluding that subsidiary used $2.4 million credit under settlement to pay for transfer of property. Taxpayer did not estab- lish that there was lease cancella- tion fee paid. Armour Group Limited v. Canada (2018), 2018 CarswellNat 3686, 2018 FCA 134, Wyman W. Webb J.A., Donald J. Rennie J.A., and J. Woods J.A. (F.C.A.); af- firmed (2017), 2017 CarswellNat 1895, 2017 TCC 65, B. Paris J. (T.C.C. [General Procedure]). Federal Court Judges and Courts JURISDICTION Exchequer and Federal Courts Court not having jurisdiction to investigate alleged criminal activity or order investigation Applicant made complaint to Canadian Human Rights Com- mission. Commission allowed applicant's complaint to proceed in part but limited it to deal only with allegations dating from No- vember 2008 to August 2010. Applicant applied for judicial review, seeking to set aside de- cision. Applicant claimed that J, who she met online in 2006, was responsible for cyber attacks against her and against Canadian government and other Canadian and international institutions. Applicant brought motion for or- der to direct investigation into her claims of ongoing criminal inter- ference through cyber hacking by J against her and others, and she sought stay of proceedings of underlying judicial review appli- cation pending determination of investigation. Motion dismissed. Applicant had not addressed fun- damental legal issue of whether court had jurisdiction to order investigation. Court's jurisdic- tion was set out in ss. 17 and 18 of Federal Courts Act, but applicant had not referred to Act at all. Role of court was to resolve disputes, interpret law and to defend Con- stitution, which required it to be completely separate in authority and function from all other par- ticipants in justice system. Court 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. 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