Law Times

Law Times • November 19, 2018 Page 17 www.lawtimesnews.com Supreme Court of Canada Criminal Law APPEALS Appeal from conviction or acquittal Failure by trial judge to take steps to compel witness to answer question could not have had effect on verdict Accused was convicted at trial of attempted murder, uttering death threat and break and en- ter while committing attempt- ed murder. Appeal was allowed on basis that trial judge's refusal to take further steps to elicit answer from witness was error of law. Crown appealed. Ap- peal allowed. Trial judge did not err in manner in which he addressed witness' refusal to answer question. While it was open to trial judge to attempt to elicit answer from witness, it was proper exercise of dis- cretion to continue with main proceedings and leave issue of potential contempt for another time. Even if trial judge com- mitted error, this did not result in substantial wrong or miscar- riage of justice. Failure by trial judge to take further steps to compel witness to answer ques- tion could not have had effect on verdict. R. v. Normore (2018), 2018 CarswellNf ld 382, 2018 Car- swellNf ld 383, 2018 SCC 42, 2018 CSC 42, Wagner C.J.C., Abella J., Côté J., Rowe J., and Martin J. (S.C.C.); reversed (2018), 2018 CarswellNf ld 45, 2018 NLCA 10, C.W. White J.A., M.F. Harrington J.A., and L.R. Hoegg J.A. (N.L. C.A.). Federal Court of Appeal Immigration and Citizenship CONSTITUTIONAL ISSUES Charter of Rights and Freedoms Applicant suffering from general separation not severe enough to meet high threshold set by jurisprudence Applicant was 43-year-old Ca- nadian citizen, who was born in Bangladesh and entered into Canada in 1994 under sponsor- ship of her husband. Applicant's father applied for permanent residence under parent-grand- parent program with applicant as sponsor. At time of applica- tion, applicant was aware her case would be used as test case to challenge minimum neces- sary income (MNI) requirement under governing regulations. Visa officer refused application on basis that applicant did not meet MNI requirement. Immi- gration Appeal Division (IAD) of Immigration and Refugee Board denied applicant's appeal to sponsor father, mother and five siblings for permanent resi- dence in Canada as members of family class. Applicant unsuc- cessfully brought application for judicial review. Applicant appealed. Appeal dismissed. Provisions in Immigration and Refugee Protection Regulations did not violate section 7 or 15 of Canadian Charter of Rights and Freedoms. Given applicant's rights to liberty and security were not engaged and that there was no causal connection be- tween MNI requirement and alleged harm, there was no need to determine whether principles of fundamental justice had been breached. In light of fact that IAD did not misapprehend law and was owed deference with respect to its findings of fact that applicant did not take medi- cation despite suffering form depression and that she dis- missed possibility of travelling to Bangladesh without her fam- ily to solve problem, interven- tion from appellate court was not warranted. IAD reasonably concluded that applicant was merely suffering from general separation and it was not severe enough to meet high thresh- old set out by jurisprudence. IAD did not dismiss applicant's s. 15 claims because she failed to identify proper comparator group but rather, IAD rejected claim because applicant could not demonstrate that she was ex- cluded from sponsoring her par- ents because of distinction based on asserted grounds. Applicant's evidence fell short of meeting burden and for that reason it was not necessary to move to second part of test to determine whether any distinction created by MNI requirement was discrimina- tory. Begum v. Canada (Citizen- ship and Immigration) (2018), 2018 CarswellNat 5578, 2018 FCA 181, J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and Yves de Montigny J.A. (F.C.A.); affirmed (2017), 2017 Carswell- Nat 1905, 2017 CarswellNat 4529, 2017 FC 409, 2017 CF 409, James Russell J. (F.C.). Tax INCOME TAX Administration and enforcement General waiver provision could not be applied to override more specific provision Waiver of requirement to file notice of objection. Minister of National Revenue issued notice of reassessment of taxpayer's 2000 income tax year in 2008, but taxpayer claimed it only be- came aware of it in April 2010. Taxpayer filed notice of objec- tion in June 2010, which was rejected as invalid for being late. Taxpayer requested that Minis- ter, under s. 220(2.1) of Income Tax Act, waive requirement to file notice of objection, which was denied on ground that s. 220(2.1) of Act did not apply to notices of objection. Federal Court judge granted taxpayer's application for judicial review of Minister's decision and awarded costs to taxpayer. Minister ap- pealed. Appeals allowed. Judg- ments were set aside, taxpayer's application for judicial review was dismissed, and Minister was awarded costs of appeal and lower level. Judge erred by failing to read s. 220(2.1) of Act harmoniously with scheme and object of Act and intention of Parliament. Judge failed to give due consideration to purpose of other provisions, particularly s. 166.1(7) of Act. Legislation intentionally provided specific and strict time limits for ob- jecting and extending time to object and did not provide for considerations of fairness. Use of s. 220(2.1) of Act to engage objection process without hav- ing to comply with statutory conditions would give Minister power that Minister had been denied in s. 166.1(7) of Act. Gen- eral waiver provision could not be applied to override more spe- cific provision. Specific limita- tion periods provided for in ob- jections regime must be applied in this case. Section 220(2.1) of Act did not apply to notices of objection. Minister's decision was reasonable and correct. Canada (National Reve- nue) v. ConocoPhillips Canada Resources Corp. (2017), 2017 CarswellNat 7141, 2017 Car- swellNat 9680, 2017 FCA 243, 2017 CAF 243, Johanne Gauth- ier J.A., Yves de Montigny J.A., and Judith Woods J.A. (F.C.A.); reversed (2016), 2016 Carswell- Nat 114, 2016 CarswellNat 12077, 2016 FC 98, 2016 CF 98, Keith M. Boswell J. (F.C.). INCOME TAX Tax avoidance Stock dividends and redemption together resulted in transfer of cash without consideration and therefore tax benefit existed Holdco was issued assessment under which joint and several liability was imposed for Part- nerco's tax liability and assess- ment was also issued pursuant to GAAR on basis that N. Ltd.'s ac- quisition of Partnerco, creating deemed year end for Partnerco, frustrated s. 160 of Income Tax Act. Minister assessed Holdco under GAAR as a non-arm's length transferee for joint and several liability of tax liability owing by former subsidiary. Tax Court vacated assessment issued to Holdco, and Minister ap- pealed. Appeal allowed. Alloca- tion of income to N. Ltd. facili- tated only avoidance of liability under Act and so offended s. 96 and therefore there was avoid- ance transaction that was abu- sive. Tax Court made no error in concluding that Partnerco assessment was valid. Tax Court erred with respect to its conclu- sion that GAAR did not apply to Holdco. Tax Court failed to con- sider that stock dividends and redemption together resulted in transfer of cash without consid- eration and therefore tax benefit existed. Tax Court had conclud- ed that there would be abusive tax avoidance if there were tax benefit. Canada v. 594710 Brit- ish Columbia Ltd. (2018), 2018 CarswellNat 5237, 2018 FCA 166, Eleanor R. Dawson J.A., 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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