Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | JANUARY 21, 2019 13 www.lawtimesnews.com Supreme Court of Canada Civil Practice and Procedure PARTIES Standing Applicants did not disclose breach of distinct legal obligation or distinct injury Applicants were trustees of FM, which was sole shareholder of holding company that controlled various corporations comprising of GM Inc.. GM Inc. owned, ren- ovated and operated seniors' resi- dences. GM Inc.'s vice-president had committed fraud worth $1.8 million against its corporations. In 2009, Revenu Québec issued unexpected notice of assessment against several of GM Inc.'s cor- porations, which resulted in col- lection action and then bankrupt- cy of most of GM Inc.'s corpora- tions. This in turned caused total loss of value of FM because it was comprised exclusively of shares from holding company. Appli- cants brought action to recover lost value of FM's patrimony from group of lawyers and accountants on basis of professional miscon- duct. Professionals successfully brought motion to dismiss action for lack of sufficient interest un- der art. 165(3) of the Code of Civil Procedure. Applicants appealed. Appeal dismissed. Applicants failed to demonstrate that FM had independent cause of action in civil liability against professionals and personal interest in damages claim. Applicants did not disclose breach of distinct legal obligation, nor did they disclose distinct in- jury from that suffered by corpo- rations of GM Inc.. Alleged facts referred to legal obligations owed to corporations of GM Inc., not to FM and did not suffice to give FM independent right of action as they did not disclose breach of independent legal obligation owed to FM. FM's alleged injury caused by professionals was suf- fered by corporations of GM Inc, not directly by FM. Residences belonged to GM Inc.'s corpora- tions and not to FM and loss of value from trust corresponded to net value of seniors' residences. Brunette v. Legault Joly Thiffault, s.e.n.c.r.l. (2018), 2018 CarswellQue 11029, 2018 CarswellQue 11030, 2018 SCC 55, 2018 CSC 55, Wagner C.J.C., Abella J., Moldaver J., Karakat- sanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2017), 2017 Car- swellQue 1511, 2017 QCCA 391, Bich J.C.A., Morissette J.C.A., and Hogue J.C.A. (C.A. Que.). Criminal Law CHARTER OF RIGHTS AND FREEDOMS Charter remedieS [S. 24] Trial judge erred in failing to carry out cumulative s. 24(2) analysis with respect to Charter breaches Accused was convicted on two counts of operating vessel causing bodily harm with blood alcohol level over legal limit. Accused was operating boat when it was in- volved in accident causing injury. Police arrived on scene and de- termined accused was impaired and was arrested after admitting she was operating boat. Accused was not immediately advised of her right to counsel as to not in- terfere with medical care. Police accompanied accused to hospital and once advised as to her right to counsel, she indicated her inten- tions to speak to family lawyer. When medical personnel took accused's blood for medical pur- poses, extra blood was taken and sealed by officer and later seized pursuant to warrant. Accused sought exclusion of evidence based on violations of her ss. 8, 9 and 10(b) rights under Canadian Charter of Rights and Freedoms. Trial judge held blood samples seized were in violation of s. 8 of Charter when officer sealed two vials, and accused's s. 9 rights were violated as she was arrested at point when police lacked rea- sonable grounds. However, trial judge held accused's initial state- ments were voluntary and made while she was not detained and therefore her Charter rights un- der s. 10(b) were not violated. Trial judge excluded blood samples un- der s. 24(2) of Charter but admit- ted hospital records which con- tained analysis of accused's blood alcohol content. Appeal by ac- cused dismissed. Trial judge erred in failing to carry out cumulative s. 24(2) analysis with respect to Charter breaches identified, but did not err in result. Exclusion was not justified. Accused ap- pealed. Appeal dismissed. Appeal should be dismissed, substantially for reasons of majority of Court of Appeal. R. v. Culotta (2018), 2018 CarswellOnt 21141, 2018 Car- swellOnt 21142, 2018 SCC 57, 2018 CSC 57, Wagner C.J.C., Abella J., Moldaver J., Rowe J., and Martin J. (S.C.C.); affirmed (2018), 2018 CarswellOnt 12035, 2018 ONCA 665, C.W. Hourigan J.A., G. Pardu J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.). Federal Court of Appeal Constitutional Law CHARTER OF RIGHTS AND FREEDOMS nature of rightS and freedomS It was impossible to conclude that job-sharing was adverse to being on leave without pay Retired RCMP officers at issue were women who worked part time hours for certain periods and claimed that as result they were not entitled to pension as generous as male colleagues. Of- ficers' pension benefits for job- sharing periods were based on hours officers regularly worked under their job-sharing arrange- ments, calculated in same fashion as pension benefits were calcu- lated for other RCMP members who worked part-time hours. Of- ficers claimed that denial of op- portunity to purchase full time pension benefits was violation of right to equality on grounds of sex and parental status under s. 15(1) of Canadian Charter of Rights and Freedoms. Officers unsuccessfully brought applica- tion for declaratory relief. Offi- cers appealed. Appeal dismissed. Officers failed to establish req- uisite adversity of treatment to give rise to infringement of s. 15 of Charter. Pension entitlements could not be viewed in isola- tion from rest of remuneration package afforded to two groups of employees. Without any evi- dence as to relative value of two packages, it was impossible to conclude that job-sharing was adverse to being on leave without pay. Federal Court did not err in concluding that officers had failed to establish that differential treatment was based on enumer- ated or analogous ground. Any inequality in treatment that offi- cers might have incurred was not shown to have been based on or to have arisen by reason of offi- cers' sex, family or parental status as there was no evidence to sug- gest that option of leave without pay was unavailable to female of- ficers who had children. Fraser v. Canada (Attorney General) (2018), 2018 Carswell- Nat 7614, 2018 FCA 223, Johanne Gauthier J.A., Mary J.L. Glea- son J.A., and Judith Woods J.A. (F.C.A.); affirmed (2017), 2017 CarswellNat 2726, 2017 Carswell- Nat 2727, 2017 FC 557, 2017 CF 557, Catherine M. Kane J. (F.C.). Tax INCOME TAX adminiStration and enforCement Taxpayer who fails to pay tax debt pending determination of related case not normally entitled to relief from interest Taxpayer entered into depar- ture trade transaction with bank before move to Malta in 1998, creating interest deduc- tion of over $47 million to re- duce tax arising on emigration. Minister reassessed taxpayer under Income Tax Act, taking various positions in multiple reassessments that included de- nial of interest deduction and increase of capital gain on ba- sis that he had not terminated Canadian residency. Litigation ensued, with taxpayer's ap- peal held in abeyance pending outcome of similar case. After Minister's position was upheld in similar case, taxpayer settled his claim twelve years after re- assessment and paid total tax debt of $38,067,818. Taxpayer's request for cancellation of inter- est was refused. Taxpayer's ap- plication for judicial review was dismissed. Taxpayer appealed. Appeal dismissed. Decision of Minister's delegate to deny relief was reasonable. Taxpayer did not establish that inconsistent reassessments were extraordi- nary circumstances or outside his control, as CRA's approach did not prevent him from be- ginning to address his tax debt. Taxpayer was given advance warning of second reassessment that dramatically increased his tax liability and he could have taken action if he was concerned about interest running. Reas- 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. Case Law 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 CASE LAW

• Cover