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Page 18 November 26, 2018 • Law Times www.lawtimesnews.com and Gleason J.A. (F.C.A.); af- firmed (2016), 2016 CarswellNat 11609, 2016 CarswellNat 3955, 2016 TCC 173, 2016 CCI 173, Lucie Lamarre A.C.J. (T.C.C. [General Procedure]). Federal Court Civil Practice and Procedure JUDGMENTS AND ORDERS Setting aside Regardless of who shareholders or directors of company were, evidence showed that taxpayer was directing mind Setting aside orders. Judge M dis- missed motions to set aside jeop- ardy collection orders against tax- payer, confirmed lifting of corpo- rate veil and issued charging order against immovables, including C building belonging to company. Judge B granted Crown's mo- tion for forced surrender and judicial sale of C building and dismissed taxpayer's motion to set aside judge M's order. Judge R dismissed taxpayer and com- pany's motion to set aside judge B's order for forced surrender and sale and to set aside judge M's or- der lifting corporate veil and is- suing charging order. Taxpayer brought motion to set aside these three orders on basis that he had found "transaction confirmation" document that confirmed sale of shares and revoked counter letter. Motion dismissed. Taxpayer did not meet conditions to set aside orders. Matter alleged by taxpayer was not "matter" within meaning of s. 399(2)(a) of Federal Courts Rules. Even if document could not be found until after last order, taxpayer knew or should have known that counter letter had been revoked. Taxpayer could have found document sooner if he had exercised due diligence. Taxpayer did not show that docu- ment would have had determin- ing effect on orders. Since mat- ters had no effect on order made by judge M, they had had no ef- fect on orders by judges B and R. Regardless of who shareholders or directors of company were, evidence showed that taxpayer was directing mind. Crown was awarded costs of $5,000 because motion was dilatory proceeding and taxpayer was trying to un- duly delay sale of building. Loi de l'impôt sur le revenu (Re) (2018), 2018 CarswellNat 6206, 2018 CarswellNat 6207, 2018 FC 1012, 2018 CF 1012, Syl- vie E. Roussel J. (F.C.). Pensions PRIVATE PENSION PLANS Administration of pension plans Office confused authority of police officers with power of band councils for adminsitration of police services Pension for police forces in In- digenous communities. First Nations Public Security Pension Plan provided benefits for police officers, firefighters and special constables (employees) working in Indigenous communities ex- clusively for employer-members, which were band councils within meaning of Indian Act. Office of Superintendent of Financial In- stitutions of Canada revised its position by decreeing that em- ployees were not employed in federal undertaking, plan was not registered under Pension Benefits Standards Act (PBSA), and plan would be transferred to provincial authority. Plan ad- ministrator and plan manager brought application for judicial review and declaration that em- ployees were employed in federal undertaking and PBSA applied to plan. Application granted. Of- fice incorrectly assumed that po- licing activities on reserve were under provincial jurisdiction because of nature of police offi- cer's work, but jurisdiction over labour relations was ancillary ju- risdiction, and it was enterprise that must be examined. Fact that employee was "peace officer" under Criminal Code or Police Act did not affect character of his employer's police activities. Prerequisites for federal regu- lations to apply were satisfied pursuant to s. 4(2) of PBSA be- cause employees were employed in federal undertaking since employer-members were band councils. Functional test showed that police services were indivis- ible from governance activities of band council, and Office erred in concluding otherwise. Office failed to correctly identify fed- eral undertaking and incorrectly confused authority given to po- lice officers in exercise of their duties with power conferred on band councils for administration of police services, which led it to erroneously conclude that both powers derived from provincial Police Act. Due to s. 91(24) of Constitution Act, 1867 and fed- eral paramountcy, federal labour and pension plan regulations applied to plan, which did not preclude ss. 90 to 93 of Police Act from also applying. Picard c. Canada (Procu- reur général) (2018), 2018 Car- swellNat 3828, 2018 Carswell- Nat 4558, 2018 FC 747, 2018 CF 747, Luc Martineau J. (F.C.). Tax Court of Canada Tax INCOME TAX Employment income Workers not allowed to subcontract work to other people, which favoured conclusion they were employees Taxpayer company was in busi- ness of providing janitorial and cleaning services, and taxpayer hired workers for cleaning duties based on verbal contracts. Min- ister found that for employment periods between 2014 to 2016, workers were engaged in insur- able and pensionable employ- ment. Taxpayer appealed. Appeal dismissed. Evidence revealed that taxpayer supervised workers di- rectly and taxpayer's agent was always on site with workers. Tax- payer determined worker's task and duties, guaranteed work of workers and determined workers' work hours and rate of pay. Work- ers were not allowed to subcon- tract work to other people at lower rates, which favoured conclusion that workers were employees. S.S.R. Maintenance Ltd. v. M.N.R. (2018), 2018 Carswell- Nat 6523, 2018 TCC 216, Réal Favreau J. (T.C.C. [Employment Insurance]). INCOME TAX Tax credits Minister probably did not intend to concede rebate issue, but what mattered was what was done, not what was intended Two issues arose from reas- sessment of taxpayer. First is- sue, whether Minister erred in denying employment expenses claimed by taxpayer, was dis- missed. Second issue, whether taxpayer was entitled to claimed GST/HST rebate was allowed on basis that Minister conceded issue. Application by Minister to vary judgment on basis that Minister did not concede issue. Application dismissed. Taxpay- er claimed expenses that were not challenged by Minister. It was accepted that Minister prob- ably did not intend to concede rebate issue, but what mattered was what was done, not what was intended. Rebate issue was not overlooked and was properly adjudicated, accordingly, appli- cation had to fail , because this was not situation that fell within recognized exceptions to finality of judgments. Chao v. The Queen (2018), 2018 CarswellNat 6121, 2018 CarswellNat 6525, 2018 TCC 202, 2018 CCI 202, Gaston Jorré D.J. (T.C.C. [Informal Proce- dure]); affirmed (2018), 2018 CarswellNat 2086, 2018 TCC 72, Gaston Jorré D.J. (T.C.C. [Infor- mal Procedure]). Ontario Civil Cases Civil Practice and Procedure CLASS AND REPRESENTATIVE PROCEEDINGS Representative or class proceedings under class proceedings legislation Reasonable to seek direct notice program in national class action where substantial number of class members resided outside Ontario Defendant was successor to in- surance and investment company that was subject of proposed na- tional class action in Ontario. Ac- tion involved two distinct and dis- crete claims, with one relating to management fee overcharges, and other relating to alleged under- performance of particular insur- ance investment fund. Action was settled in relation to management fee claim, and certification was granted for underperformance claim. Parties agreed about con- tent of notice to class members, but defendant was not satisfied with proposed notice program for sending notice to class members. Parties made submissions on no- tice program requirements. More robust notice program proposed by defendant was approved, with cost of program to be shared one- third by plaintiff and two-thirds by defendant. Notice program was to involve: (a) direct mail no- tice to class members based on list of class members provided by de- fendant; (b) bad-address resolu- tion protocol; (c) posting of notice or link to notice on class coun- sel's website; (d) posting of notice or link to notice on defendant's website; and (e) class counsel is- suing press release about certifi- cation of action and indicating that formal notice was available through its website. Plaintiff 's notice program would have been adequate for purpose of giving class members notice of right to opt out, but defendant's concern was whether courts in other prov- inces would recognize Ontario judgment if notice program was not more robust. It was reason- able for defendant to seek direct notice program in national class action where substantial number of class members resided outside Ontario. Since defendant was pre- dominant beneficiary of robust notice program at this juncture, it should bear greater proportion of costs of notice program. Fantl v. ivari (2018), 2018 CarswellOnt 11870, 2018 ONSC 4443, Perell J. (Ont. S.C.J.). COSTS Costs of appeals Suit had markings of true SLAPP so full indemnity costs awarded Defendants successfully moved under s. 137.1 of Courts of Justice Act for order dismissing defa- mation action and motion judge awarded costs of $30,000 on full indemnity basis. Plaintiff 's ap- peal was dismissed. Defendants applied for costs of appeal. Full indemnity costs awarded. While "presumption" in s. 137.1(7) of Act not applicable on appeal, suit had markings of true SLAPP so full indemnity costs awarded. Able Translations Ltd. v. Express International Transla- tions Inc. (2018), 2018 Carswel- lOnt 17534, 2018 ONCA 854, Doherty J.A., David Brown J.A., and Grant Huscroft J.A. (Ont. C.A.); additional reasons (2018), 2018 CarswellOnt 14126, 2018 ONCA 690, Doherty J.A., D.M. Brown J.A., and Grant Huscroft J.A. (Ont. C.A.). COSTS Costs of particular proceedings Impossible to distinguish between costs attributable to defence of motion and costs attributable to other motions Plaintiff was general physician who prepared executive summa- ries of specialists' reports from medical assessments on behalf of insurers. Defendant lawyer was president-elect of association of personal injury lawyers who rep- resented accident victims who emailed confidential "Listserv" accessible only to subscribing as- sociation members, detailing in- cident in which plaintiff 's execu- tive summary under-represented specialists' diagnosed level of vic- tim's impairment and referring to second such case. After email was leaked to broader audience plaintiff was dropped by many of insurance companies with whom he had worked for years. Plaintiff brought action against defendant and her firm for libel. Defendant's motion under s. 137.1 of Courts of Justice Act to dismiss action was granted but plaintiff 's ap- peal was allowed. No costs were ordered for motion before trial judge. Presumption in s. 137.1(8) favors no costs order when mov- ing party was unsuccessful on motion. Significant part of pro- ceedings on motion involved meritless constitutional and procedural arguments brought by plaintiff. Any costs plaintiff might have received in light of his success on s. 137.1 motion would have been substantially offset by costs payable to defendant in re- spect of other unsuccessful and meritless motions he brought. As well it was impossible on mate- rial filed to distinguish between costs attributable to the plaintiff 's defence of motion and costs at- tributable to various other mo- tions he brought. Requesting bills of costs to attribute them to mo- tions would only prolong resolu- tion of proceeding underlying this motion. Trial judge would have full authority to deal with all cost issues relating to trial pro- ceedings and some costs already incurred might be recoverable as trial costs. Platnick v. Bent (2018), 2018 CarswellOnt 17533, 2018 ONCA 851, Doherty J.A., David Brown J.A., and Grant Huscroft J.A. (Ont. C.A.); additional reasons (2018), 2018 CarswellOnt 14124, 2018 ONCA 687, Doherty J.A., D.M. Brown J.A., and Grant Hu- scroft J.A. (Ont. C.A.). LIMITATION OF ACTIONS Actions in contract or debt Civil action became appropriate when plaintiff had reason to believe it would not otherwise be paid Plaintiff entered into contract with defendant to provide con- struction services. Plaintiff sent monthly invoices under con- tract from December 2007 to January 2009. Defendant made payments on invoices until August 2009. Plaintiff claimed that not all of invoices were paid and that balance of more than $2.5 million was owing. Defen- dants took position that they paid everything that was owing under main contract and that additional work fell under sub- sequent service/maintenance contract but also made various CASELAW

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