Law Times

Law Times • November 12, 2018 Page 17 www.lawtimesnews.com Supreme Court of Canada Criminal Law DEFENCES Consent Defence of honest but mistaken belief should not go to jury in absence of evidence that accused took reasonable steps to ascertain consent Accused was charged with hav- ing committed sexual assault. Chief Military Judge submitted to court martial panel defence of honest belief in consent. Not guilty verdict was rendered and Crown appealed. On appeal, majority decided that Chief Military Judge could not sub- mit defence to panel. Major- ity was of view that statutory limitations set out in section 273.2 of Criminal Code should be considered first. Appeal was allowed and new trial was or- dered. Accused appealed before Supreme Court of Canada. Ap- peal dismissed. There was no evidence from which a trier of fact could find that the accused had taken reasonable steps to ascertain that the complainant was consenting. Therefore, the defence of honest but mistaken belief should not have been put to the panel. R. c. Gagnon (2018), 2018 CarswellNat 5739, 2018 Car- swellNat 5740, 2018 SCC 41, 2018 CSC 41, Wagner C.J.C., Abella J., Moldaver J., Kara- katsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2018), 2018 CarswellNat 233, 2018 Car- swellNat 234, 2018 CACM 1, 2018 CMAC 1, B. Richard Bell C.J., Elizabeth A. Bennett J.A., and Johanne Trudel J.A. (Can. Ct. Martial App. Ct.). Insurance EXTENT OF RISK (EXCLUSIONS) Liability insurance No inconsistency in finding hotel had obligation of prudence and that stolen cars not in hotel's control Travelers left their car in the parking lot of hotel and handed over their keys. Upon their re- turn, they found that their car had been stolen. Insurer A, be- ing subrogated to rights of its insured, brought action against hotel and hotel called its insurer in warranty. Insurer P brought action against hotel and hotel's insurer and both actions were joined and were heard together. Trial judge found hotel liable for theft of cars and held that exclu- sion clause in hotel's liability insurance policy did not apply. Hotel's insurer was ordered to compensate hotel in first case and insurer P in second. Hotel's insurer and hotel appealed from that judgement. Court of Ap- peal confirmed hotel's liability, but found that exclusion clause applied. Hotel and insurer P ap- pealed. Hotel's appeal allowed in part; insurer P's appeal allowed. Court of Appeal's intervention was unwarranted, for three rea- sons. First, it was not accurate to say that judge had not consid- ered handover of keys. Second, record did not permit Court of Appeal to review judge's find- ing on reason why the guests handed over their keys to hotel. Third, there was no contradic- tion or inconsistency in law be- tween judge's finding that hotel had obligation of prudence and diligence and her finding that stolen cars were not in its care, custody or control. 3091 5177 Québec inc. (Éconolodge Aéroport) v. Lombard General Insurance Co. of Canada (2018), 2018 CarswellQue 9016, 2018 Car- swellQue 9017, 2018 SCC 43, 2018 CSC 43, Wagner C.J.C., Abella J., Moldaver J., Kara- katsanis J., Gascon J., Côté J., Brown J., Rowe J., and Mar- tin J. (S.C.C.); reversed (2016), 2016 CarswellQue 11276, 2016 QCCA 1903, Bélanger J.C.A., Hogue J.C.A., and Chamber- land J.C.A. (C.A. Que.). Federal Court of Appeal Tax INCOME TAX Administration and enforcement Tax Court judge properly advising taxpayer it was not role of Tax Court to provide legal advice Taxpayer received nil assess- ments. Tax Court of Canada quashed taxpayer's appeal be- cause no tax, interest or pen- alty was assessed under federal income tax law. Taxpayer ap- pealed. Appeal dismissed. Un- less taxpayer challenged taxes, interest or penalties assessed, there was nothing to appeal. No relief could be provided from Tax Court from notification that no tax was payable, even if there may have been federal tax owing or amount was payable under provincial law. Tax Court did not breach principles of nat- ural justice and procedural fair- ness, as judge properly advised taxpayer that it was not role of Tax Court to provide her with legal advice. Segura Mosquera v. Can- ada (2018), 2018 CarswellNat 5272, 2018 CarswellNat 5788, 2018 FCA 170, 2018 CAF 170, D.G. Near J.A., Yves de Mon- tigny J.A., and Judith M. Woods J.A. (F.C.A.). Federal Court Public Law SOCIAL PROGRAMS Welfare benefits Recipient reasonably believed Service Canada would be notified of change of marital status through tax returns Jurisdiction. Applicant recipient received Guaranteed Income Supplement (GIS) calculated by Service Canada on basis that she was single. Recipient had dis- closed on her tax returns that she was in common-law relationship and assumed, based on informa- tion on Service Canada website, that Canada Revenue Agency (CRA) would inform Service Canada of change. Service Cana- da did not find out about change in status for three years and no- tified recipient that she was re- quired to repay overpayment of $13,189. General Division of So- cial Security Tribunal summari- ly dismissed recipient's appeal on basis that it lacked jurisdiction. General Division found that it could not entertain appeals in respect of decisions to forgive or reduce overpayment of benefits as only Minister of Employment and Social Development could forgive or reduce overpayment. Appeal Division of Social Se- curity Tribunal upheld General Division's decision. Recipient brought application for judicial review. Application dismissed. Recipient reasonably believed that Service Canada would be notified of her change of marital status through her income tax returns. There was nothing un- reasonable in finding that Gen- eral Division and Appeal Divi- sion did not have jurisdiction to deal with appeal. Recipient's only remedy in respect of requirement to repay overpayment was to ask Minister to forgive overpayment. Nanka v. Canada (Attor- ney General) (2018), 2018 Car- swellNat 5374, 2018 CarswellNat 5543, 2018 FC 959, 2018 CF 959, James W. O'Reilly J. (F.C.). Tax Court of Canada Tax INCOME TAX Administration and enforcement Behaviour during audit did not affect correct amount of tax to be assessed Taxpayer brought appeal under informal procedure but asked for it to be moved to general pro- cedure when she realized that amount in dispute was in excess of jurisdiction of informal proce- dure. Minister of National Reve- nue brought motion to strike out notice of appeal, with leave to file fresh notice of appeal. Motion granted. There was no order dis- pensing with rules of pleadings. This motion would not cause great delay. Notice of appeal was not in format set out in form 21(1) (a) Tax Court of Canada Rules (General Procedure) and did not conform to R. 47(1) of Rules. No- tice of appeal did not clearly set out factual allegations and issues and was confusing. Allegations relating to conduct of Canada Revenue Agency (CRA) did not belong in notice of appeal be- cause behaviour during audit did not affect correct amount of tax to be assessed. Notice of appeal's confusion and irrelevant allega- tions may prejudice or delay fair hearing. Taxpayer was allowed to file fresh notice of appeal and would not be obliged to pay sec- ond set of filing fees. Kowalczyk v. The Queen (2018), 2018 CarswellNat 5239, 2018 TCC 190, Gaston Jorré D.J. (T.C.C. [General Procedure]). 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

• Cover