Law Times

Law Times • sepTember 24, 2018 Page 13 www.lawtimesnews.com Supreme Court of Canada Evidence EXAMINATION OF WITNESSES Supporting credibility Trial judge did not rely on inconsistencies to bolster truth of complainant's testimony Accused was convicted of sex- ual assault. During cross-ex- amination, accused challenged reliability of complainant's testimony on basis of inconsis- tencies between her statements to police and her testimony. However, trial judge found in- consistencies involved only pe- ripheral circumstances while complainant's relation of central facts was consistent and incon- sistencies had not impaired her reliability respecting sexual as- sault. Accused was unsuccess- ful on appeal as it was held trial judge's use of prior statement was sensible and well-support and had not constituted error in law. Accused appealed. Appeal dismissed. Trial judge found inconsistencies involved only insignificant peripheral matters and had not relied on inconsis- tencies to bolster truth of com- plainant's testimony. It was ap- propriate use of prior consistent statement and did not constitute error of law. R. v. Cain (2018), 2018 Car- swellNS 364, 2018 CarswellNS 365, 2018 SCC 20, 2018 CSC 20, Wagner C.J.C., Karakatsanis J., Gascon J., Côté J., and Martin J. (S.C.C.); affirmed (2017), 2017 CarswellNS 949, 2017 NSCA 96, Joel E. Fichaud J.A., van den Eynden J.A., and Scanlan J.A. (N.S. C.A.). Labour and Employment Law OCCUPATIONAL HEALTH AND SAFETY LEGISLATION Offences under legislation Employer's obligation to ensure health and safety not limited to health and safety of its own employees Worker was tree feller work- ing as independent contrac- tor. Worker was fatally struck by rotting tree while working within area of forest license held by employer. Workers' Com- pensation Board investigated accident and concluded that employer had failed to ensure that all activities of forestry op- eration were planned and con- ducted in manner consistent with s. 26.2(1) of Occupational Health and Safety Regulation. Board imposed administrative penalty on employer pursuant to s. 196(1) of Workers Compensa- tion Act. Workers' Compensa- tion Appeal Tribunal dismissed employer's appeal, but reduced administrative penalty. British Columbia Supreme Court and Court of Appeal upheld Tribu- nal's order. Employer appealed. Appeal dismissed. Tribunal's interpretation of s. 196(1) of Act, which covered employer as it operated with respect to work- site where fatality occurred, was not patently unreasonable. Employer's obligation to ensure health and safety of workers at worksite was not limited to health and safety of its own em- ployees. Broad interpretation of s. 196(1) to include employers under Act whose conduct could have constituted breach of their obligations as owners would best further statutory goal of promoting workplace health and safety and deterring future accidents. West Fraser Mills Ltd. v. British Columbia (Workers' Compensation Appeal Tribu- nal) (2018), 2018 CarswellBC 1234, 2018 CarswellBC 1235, 2018 SCC 22, 2018 CSC 22, 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 CarswellBC 3290, 2016 BCCA 473, Newbury J.A., Tysoe J.A., and Groberman J.A. (B.C. C.A.). Federal Court Labour and Employment Law PUBLIC SERVICE EMPLOYEES Termination of employment Submitting university degree obtained without having taken courses was dishonest act Applicant stated she held bach- elor's degree in nursing admin- istration. Following investiga- tion under s. 69 of Public Ser- vice Employment Act, public service commission found that applicant committed fraud dur- ing call for nomination process aimed at filling position of na- tional coordinator for health- care professionals program. Investigation revealed that ap- plicant did not take any courses with university, which did not exist. Commission revoked her appointment and imposed three-year restriction related to any new appointments within federal public service. Applicant brought application for judicial review. Application dismissed. There was no violation of pro- cedural fairness in investigation process. Investigator erred in applying test for finding that she had concealed important fact in internal nomination process and that deprivation would have resulted from this concealment. investigator found not only that the applicant showed surpris- ing naïveté and greed, but that she also committed fraud by concealing an important fact when submitting her applica- tion, which led to deprivation. It was reasonable for commis- sion to find that actus reus of dishonest act or concealment of important facts was shown. Submitting university degree obtained without having taken courses and only on simple ba- sis of few letters of reference and payment of specified amount was without doubt dishonest act that would be considered as such by reasonable person in same circumstances. Lemelin c. Canada (Procu- reur général) (2018), 2018 Car- swellNat 1123, 2018 CarswellNat 1283, 2018 FC 286, 2018 CF 286, Jocelyne Gagné J. (F.C.). Tax INCOME TAX Administration and enforcement Income Tax Act did not allow for CRA to conduct random fishing expedition Canada Revenue Agency(CRA) sought information regarding clients of Hydro-Québec with commercial accounts. Hydro- Québec was corporation that supplied electric power to in- dividuals and corporations in province of Quebec. CRA brought formal demand for which judicial authorization was required under s. 231.2(1) of Income Tax Act (Act) for pro- duction of information regard- ing Hydro-Québec commercial account-holders. Application dismissed. To grant judicial au- thorization would have been contrary to principles of respect for privacy. CRA did not know how many commercial accounts existed with Hydro-Québec, and could not determine how many of commercial accounts were associated with individu- als or corporations. CRA could not name targeted identifiable group. CRA was not looking for information directly connected with fiscal situation of group of taxpayers. Act did not allow for CRA to conduct random fish- ing expedition to determine whether taxpayers were filing accurate returns. Privacy in- terests of commercial account- holders were paramount. In circumstances, CRA would not be conducting income tax verifi- cation in good faith. Just because formal demand came from CRA did not mean that there was val- id income tax verification being conducted, as this was circular logic that would render s.231.2(1) of Act devoid of meaning. All persons who had commercial account with Hydro-Quebec was not identifiable group. Canada (Revenu national) c. Hydro-Québec (2018), 2018 CarswellNat 3538, 2018 Car- swellNat 4138, 2018 FC 622, 2018 CF 622, Yvan Roy J. (F.C.). Tax Court of Canada Tax INCOME TAX Business and property income No basis for claimed deductions where taxpayer admitted she did not have any investment income During most of 2008 taxation year, taxpayer worked as server in restaurant and sometimes for employer's off-site catering. Taxpayer reported employ- ment income of $26,868.48 and claimed employment expenses 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-2 1 2018-09-05 10:17 AM

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