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Page 14 January 7, 2019 • Law Times www.lawtimesnews.com of work due to work shortage and submitted application for Employment Insurance (EI) benefits nine days later. Employ- ment Insurance Commission informed applicant that if his claim had been extended under Bill C-15 legislation, he would have been entitled to additional 25 weeks of benefits. Applicant appealed to General Division of Social Security Tribunal and ar- gued that he could have claimed additional weeks of benefits had he delayed application process. General Division summarily dismissed appeal. Social Secu- rity Tribunal Appeal Division dismissed applicant's appeal. Applicant brought application for judicial review. Application dismissed. Commission did not owe applicant fiduciary duty. Appeal Division reasonably concluded that General Divi- sion did not err in finding that applicant had no reasonable chance of success. It was clear that starting date for benefit pe- riod was three days after layoff, pursuant to s. 10(1) of Employ- ment Insurance Act. Appeal Di- vision's finding that applicant's EI payments had been delayed due to his severance allowance was reasonable. Determination of case turned on when benefit period commenced, not when payments commenced. Appli- cant was aware of delay that his severance pay would cause. Berkiw v. Canada (Attor- ney General) (2018), 2018 Car- swellNat 7575, 2018 FC 1228, Paul Favel J. (F.C.). Tax Court of Canada Tax GOODS AND SERVICES TAX Exempt supplies Predominant element of taxpayer's service was " financial service" notwithstanding some ancillary services Taxpayer was car dealership that also sold insurance policies to customers, which covered vari- ous types of credit insurance to cover their lease or finance pay- ments. Under dealership agree- ment, taxpayer was also required to provide complimentary poli- cy to customers who purchased or leased vehicles for personal use that covered them for basic perils. Minister reassessed tax- payer and opined that taxpayer's services did not amount to ar- ranging for provision of insur- ance and denied taxpayer ex- emption from GST/HST for ex- empt supply of financial service as defined in s. 123(1) of Excise Tax Act. Taxpayer appealed. Ap- peal allowed. It was found that any objective analyses of dealer agreement would lead to conclu- sion that main purpose of con- tract was to sell insurance and not provide expert advice, per- sonnel or commercial efficacy. It could not be concluded that, by appointing party as dealer to sell profitable product, this turned product into element of service being provided, per se. Pre- dominant element of taxpayer's service was arranging for sale of insurance, which fell within definition of "financial service", notwithstanding that some of ancillary services provided by taxpayer could be considered promotional or administrative. Applewood Holdings Inc. v. The Queen (2018), 2018 Car- swellNat 7015, 2018 TCC 231, F.J. Pizzitelli J. (T.C.C. [General Procedure]). INCOME TAX Business and property income Continuing services provided by taxpayer were referable and connected to income earned in previous years Retired member of Nova Sco- tia Barristers Society, taxpayer acquired files through 27 years of practicing law and, one year before she retired, moved client files to storage facility. Taxpayer deducted professional dues of $57.00 and certain file storage fees of $1,200.00 as expenses dur- ing 2015 taxation year. Minister of National Revenue allowed annual dues but disallowed file storage fees. Taxpayer appealed. Appeal allowed. Society's mem- bers were insured against pro- fessional liability risk through insurance association which recommended that client files be retained, depending on type, for 3 to 25 years and there were elaborate and precise directives for files which may be scanned, may be destroyed and must be kept indefinitely. During years of providing legal services, taxpay- er was accruing annually "run off " responsibilities concerning file retention, accessibility and future storage obligations. Tax- payer incurred requirement to expend future sums on storage to earn then current income. In addition, taxpayer was incurring run off professional responsibili- ties and future risk as sole prac- titioner. Both past accrual of fu- ture record keeping services, file storage and need to protect pres- ently her insurance coverage for past legal services all represented enduring and current provision of legal services beyond tempo- ral period in which income was received. Continuing services provided by taxpayer in 2015 were referable and connected to income earned in previous years. Tournier v. The Queen (2018), 2018 CarswellNat 7014, 2018 CarswellNat 7435, 2018 TCC 229, 2018 CCI 229, Randall S. Bocock J. (T.C.C. [Informal Procedure]). INCOME TAX Corporations There was no evidentiary basis to find that any of said amounts were wrongly included in subject dividend amount Taxpayer was insurance broker and shareholder of company during subject taxation years. Difference developed between taxpayer and another insur- ance broker, whose wife was also bookkeeper for company, which led to legal dispute. In 2012, dividend amount in taxpayer's T5 was found to be $33,555.23 that was comprised of several different amounts, some of which were disputed by taxpayer. Taxpayer appealed both 2012 and 2013 assess- ment. Appeal allowed in part. As for $33,555.23 amount, there was evidence that $7,000 pay- ment that was included in this amount was treated, through deficient bookkeeping, as both salary payment and dividend payment. Accordingly, this $7,000 amount was to be sub- tracted from main amount. There were also other disputed amounts within 2012 dividend amount, but in absence of cor- roborating evidence, there was no evidentiary basis to find that any of said amounts was wrongly included in subject dividend amount for 2012 taxa- tion year. As for 2013 taxation year dividend, taxpayer disput- ed amount of $15,000, but there was no specific evidence ad- duced concerning this amount. Lunot v. The Queen (2018), 2018 CarswellNat 7576, 2018 TCC 241, B. Russell J. (T.C.C. [Informal Procedure]). Ontario Civil Cases Civil Practice and Procedure CLASS AND REPRESENTATIVE PROCEEDINGS Representative or class proceedings under class proceedings legislation Insureds' success in having action certified on some common issues should be ref lected in appropriate award of costs Plaintiff insureds alleged defen- dant insurer breached provi- sions relating to cost of insur- ance (COI) and administrative fee. Motion judge dismissed in- sureds' motion for certification of action as class proceeding. Insurer's unsuccessful summary judgment motion demonstrated that class action was woefully deficient and could not be cer- tified. Motion judge awarded insurer costs of one million dol- lars on partial indemnity basis. Court of Appeal partially al- lowed insureds' appeals. Court of Appeal certified class action with respect to some claims and allowed issue of whether some individual claims were time- barred to be determined at later date. Parties made submissions on costs, with insureds seeking $1.3 million for certification and summary judgment mo- tions and $200,000 for costs of appeals, and insurer seeking $500,000 with respect to certi- fication motion. Insureds were awarded $600,000 inclusive in respect of costs in court below. There was no basis on which to deprive insureds of costs. In- sureds' success in having action certified on some common is- sues and in reversing summary judgment should be ref lected in appropriate award of costs. While success was divided on appeal, insureds ended up sig- nificantly better off and insurer worse off. Fehr v. Sun Life Assurance Company of Canada (2018), 2018 CarswellOnt 18080, 2018 ONCA 874, G.R. Strathy C.J.O., C.W. Hourigan J.A., and B.W. Miller J.A. (Ont. C.A.); addition- al reasons (2018), 2018 Carswel- lOnt 14508, 2018 ONCA 718, George R. Strathy C.J.O., C.W. Hourigan J.A., and B.W. Miller J.A. (Ont. C.A.). Fact that award benefits some, but not all members of class does not remove award from ambit of Regulations Class plaintiffs brought action against amalgamating insur- ance companies which had taken money from their PAR accounts. Trial judge approved class counsel fees of $16.4 mil- lion; placed first charge for fees over $56.43 million ordered re- turned to PAR accounts; found class plaintiffs entitled to $4 million partial indemnity costs; and imposed levy in favour of Law Foundation of Ontario (Foundation) on $56.43 million to be returned. Trial judge ruled no costs or expenses could be allocated to PAR accounts without leave of court and on notice. Companies appealed from decision on class counsel fees, costs and imposition of levy and from order clarify- ing earlier judgment. Founda- tion cross-appealed that ad- ditional disbursements should have been awarded to class and subject to levy. Appeals and cross-appeal dismissed. PAR accounts were fund available for benefit of class members if and when dividend declared. Class members awarded right to have $56.43 million repaid to PAR accounts which would not have been possible without work of class counsel. Levy pay- able to Fund when monetary award is made to one or more persons in class that includes a plaintiff who received financial support from Fund. Fact that award benefits some, but not all members of class does not re- move award from ambit of s. 10 of Regulations. Disbursements related to prior appeal costs al- ready awarded and Foundation lacked standing to argue class ought to have received fur- ther disbursements given that class did not appeal this aspect. Judge did not err in ordering partial indemnity costs in fa- vour of class. Jeffery v. London Life In- surance Company (2018), 2018 CarswellOnt 14183, 2018 ONCA 716, Doherty J.A., M.L. Benotto J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 13691, 2016 ONSC 5506, J.N. Morissette J. (Ont. S.C.J.). (Ont. C.A.); af- firmed (2017), 2017 CarswellOnt 11397, 2017 ONSC 4480, J.N. Morissette J. (Ont. S.C.J.). COSTS Costs ofparticular proceedings Applicant ordered to pay costs for acting unreasonably throughout proceedings and causing unnecessary delays Applicant's mother had vascu- lar dementia and was found in- competent under assessments. Respondent was applicant's un- cle and was manager of moth- er's personal care and property under power of attorney. Ap- plicant had grievances about respondent's handling of moth- er's finances and care, claimed mother's long-term care home was substandard, and respon- dent did not properly consult applicant and was inaccessible. Respondent alleged applicant was reckless with mother's care. Applicant brought unsuc- cessful application for order declaring mother incapable of managing property, appoint- ing applicant as sole perma- nent guardian, and removing respondent as attorney. Parties made submissions on costs. Applicant was ordered to pay costs to respondent in amount of $30,059.67. Respondent was successful party. Applicant was unreasonable throughout pro- ceedings and caused unneces- sary delays. Crane v. Metzger (2018), 2018 CarswellOnt 20643, 2018 ONSC 7332, G.D. Lemon J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 15126, 2018 ONSC 5382, Lemon J. (Ont. S.C.J.). COSTS Offers to settle or payment into court Plaintiff 's submission that defendants should be deprived of costs because they were insured defied logic Plaintiff brought action for damages for personal injuries sustained in 2007 motor ve- hicle accident claiming he had suffered neurocognitive and post-concussional disorder, post-traumatic stress disorder, chronic pain and symptoms of depression resulting in very significant economic losses meriting award of $6 million. Following trial in 2017, jury awarded non-pecuniary dam- ages of $100,000, $42,500 for housekeeping expenses and $10,000 for medical and reha- bilitation costs. In their sub- missions on costs, defendants claimed entitlement under R. 49 of Rules of Civil Procedure on basis they had advanced num- ber of offers including one for $310,000 in April 2016 and one for $550,000 in December 2016. They claimed costs on partial indemnity basis in amount of $207,997.66 for fees, $27,039.70 for HST and $81,449.66 for dis- CASELAW

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