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Law Times • OcTOber 15, 2018 Page 13 www.lawtimesnews.com Supreme Court of Canada Criminal Law OFFENCES AGAINST THE PERSON AND REPUTATION Sexual assault Accused convicted as alibi evidence was neither credible nor reliable Accused appealed his convic- tions for sexual assault, assault, unlawful confinement, uttering threats, and attempting to choke complainant. Court of Appeal dismissed appeal. Appeal to Supreme Court of Canada dis- missed. Read fairly, trial judge's reasons made clear that alibi evidence was neither credible nor reliable. R. v. Gulliver (2018), 2018 CarswellAlta 1010, 2018 Car- swellAlta 1011, 2018 SCC 24, 2018 CSC 24, Abella J., Moldaver J., Gascon J., Brown J., and Rowe J. (S.C.C.); affirmed (2017), 2017 CarswellAlta 1756, 2017 ABCA 223, Ronald Berger J.A., Thomas W. Wakeling J.A., and Sheilah Martin J.A. (Alta. C.A.). Federal Court of Appeal Tax INCOME TAX Corporations Obligation to repay only arose with issuance of declaration Taxpayer's corporation paid capital dividend which Min- ister determined exceeded its available capital dividend ac- count balance as determined by Minister. Quebec Court granted taxpayer's application for declaratory relief setting aside resolution of sole director, and declaring as void entirety of capi- tal dividend. Minister assessed taxpayer for 2009 taxation year increasing taxpayer's net income by $381,260 under s. 15(2) of In- come Tax Act, and by $4,228 un- der s. 80.4 of Act. Federal Court dismissed appeal holding that dividend was a nullity but that taxpayer was unjustly enriched. Taxpayer appealed. Appeal al- lowed. Upon declaration of nulli- ty by Quebec court taxpayer had repaid amount to corporation. Obligation to repay only arose with issuance of declaration and so re-assessment based on non- existent debt. Upon repayment unjust enrichment became theo- retical. Re-assessment therefore without foundation and notice quashed. St-Pierre c. Canada (2018), 2018 CarswellNat 4008, 2018 CAF 144, Johanne Gauthier J.A., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.); reversed (2017), 2017 CarswellNat 2558, 2017 CCI 69, Réal Favreau J. (T.C.C. [General Procedure]). Federal Court Immigration and Citizenship ADMISSION Immigrants Possibility of contribution by applicant's spouse and support of family in Saskatchewan were considered by officer Applicant was accepted for for permanent residence as member of provincial nominee class. Visa officer rejected application based on concerns about applicant's ability to support family given level of English skills. Officer also found job offer was below low income cut-off (LICO) and would not be enough to support applicant and her family. Ap- plicant sought judicial review of decision. Application dismissed. Immigration and Refugee Pro- tection Regulations clear that no rights or expectations accrue un- til application process including possibility of substituted evalua- tion if officer concludes provin- cial certificate not sufficient indi- cator has run its course and final decision rendered. Reference to LICO figure was not to posit in- come required to satisfy officer; it was to point out level of economic establishment that different and higher level of income would support. Decision clear that ap- plicant's financial resources were noted, considered, taken into ac- count and weighed against likely income from proposed business venture. Possibility of contribu- tion by applicant's spouse and support of family in Saskatch- ewan were considered by officer. Officer's analysis was intelligible, justified and transparent, not at odds with IRCC's requirements, and did not fail to consider whether applicant would become familiar with work environment within reasonable length of time. Nisreen v. Canada (Citizen- ship and Immigration) (2018), 2018 CarswellNat 1947, 2018 Car- swellNat 2305, 2018 FC 469, 2018 CF 469, James Russell J. (F.C.). Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans Requirements for Minister's discretion to grant requests for reconsideration were mandatory as result of codification Applicant's Canada Pension Plan (CPP) disability pension claim was denied. When workers' com- pensation board overturned its decision and decided applicant was entitled to benefits, appli- cant made CPP reconsideration request outside statutory time period. Medical adjudicator de- nied reconsideration request be- cause several factors under s. 74.2 of Canada Pension Plan Regula- tions were not satisfied. Appli- cant unsuccessfully appealed to Social Security Tribunal General Division, which upheld medical adjudicator's decision on record. Applicant's request for leave to appeal to Social Security Tribu- nal Appeal Division was denied for reason that applicant's ap- peal had no reasonable chance of success. Applicant brought application for judicial review. Application granted. Appeal division correctly interpreted s. 74.1 of Regulations to mean four requirements for Minister's discretion to grant requests for reconsideration were mandatory as result of codification. Appeal division unreasonably decided that applicant had no reason- able chance of success on appeal without conducting assessment of this issue. Appeal division did not conduct assessment of appli- cant's argument that general di- vision failed to observe require- ments of natural justice by decid- ing matter on record instead of holding oral hearing. As decision makers found two conjunctive factors were made out, and ap- peal division's decision regarding two other factors was unreason- able, decision to deny leave to ap- peal was not reasonable. Lazure v. Canada (Attor- ney General) (2018), 2018 Car- swellNat 2151, 2018 CarswellNat 2795, 2018 FC 467, 2018 CF 467, Glennys L. McVeigh J. (F.C.). Tax GENERAL PRINCIPLES Remission orders Taxpayer submitted no documentation to support claim that delays were due to mental state Minister received T4A from municipality which had hired taxpayer as urban consultant. Minister contacted taxpayer to verify whether amount had been included in his tax return. When taxpayer failed to respond Minister re-assessed taxpayer for 2000 tax year. Taxpayer was similarly re-assessed for 2002- 2003 taxation years. Taxpayer paid re-assessments but then sought remission of taxes, pen- alties and interest in respect of income added to 2000 to 2003 taxation years as a result of CRA audits. Remission was refused and taxpayer sought judicial review of decision. Application dismissed. Taxpayer's allegation of lack of procedural fairness rejected. Deputy Commissioner did not fetter discretion and fol- lowed guidelines. Taxpayer did not show extreme financial diffi- culty. Fact that taxpayer had filed late in all but one year and so incurred penalties was properly taken into consideration. Tax- payer had submitted requests for modification beyond limitation period. Taxpayer had submitted no documentation to support claim that delays were due to mental state. Given probability that taxpayer had paid twice for years 2000 to 2003 court sug- gested that Minister try to allevi- ate taxpayer's situation as much as possible. Deshaies c. Canada (Reve- nu national) (2018), 2018 Car- swellNat 4457, 2018 CarswellNat 4656, 2018 FC 699, 2018 CF 699, Michel M.J. Shore J. (F.C.). Tax Court of Canada Tax GOODS AND SERVICES TAX Rebates Textual analysis and case law supported developer's argument that land was element in constructing condominium complex Ontario transitional new hous- ing rebate. 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