Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 11, 2019 13 www.lawtimesnews.com Supreme Court of Canada Public Law PUBLIC AUTHORITIES Armed forces Crown failed to establish that balance of convenience favoured granting of stay Crown brought motion to stay declaration of invalidity of Court Martial Appeal Court. Motion was dismissed. Crown had failed to establish that bal- ance of convenience favoured granting of stay. R. v. Beaudry (2019), 2019 CarswellNat 49, 2019 Carswell- Nat 50, 2019 SCC 2, 2019 CSC 2, Gascon J., Côté J., Rowe J., and Martin J. (S.C.C.). Federal Court of Appeal Pensions FEDERAL AND PROVINCIAL PENSION PLANS federAl pension plAns Federal Court of Appeal powers limited to examining whether evidence considered in defensible way against proper legal test Claimant was denied Canada Pension Plan disability benefits by General Division of Social Security Tribunal of Canada. Basis of claim was inability to work due to anxiety and depres- sion arising from homophobic discrimination in various work- places. Application for leave to appeal was refused under s. 58 of Department of Employment and Social Development Act and application for judicial review to Federal Court also dismissed. Claimant appealed. Appeal dis- missed. Key to General Divi- sion's decision was doctor's de- termination he was fit to return to employment just before mini- mum qualifying period, rele- vant time for assessing eligibility for disability benefits. Powers of Federal Court of Appeal limited to examining whether evidence was considered in defensible way against proper legal test. On appeal, court not allowed to re- weigh evidence. Euverman v. Canada (At- torney General) (2018), 2018 CarswellNat 5183, 2018 Car- swellNat 6278, 2018 FCA 164, 2018 CAF 164, Nadon J.A., Da- vid Stratas J.A., and Boivin J.A. (F.C.A.); affirmed (2017), 2017 CarswellNat 6630, 2017 Car- swellNat 6929, 2017 FC 1054, 2017 CF 1054, Michael D. Man- son J. (F.C.). Federal Court Tax GOODS AND SERVICES TAX rebAtes Impugned wording in guide was not incorrect or inaccurate Taxpayer was joint owner of owner-built house on which substantial construction was completed in August 2014. Tax- payer read New Housing Rebate guide, and as her home exceeded $450,000 value, she thought she was ineligible for both federal and provincial rebate. After tax- payer made further inquiries, she realized value of her home did not preclude her from receiving provincial rebate, and taxpayer submitted her application over two months after application was due and requested extension of time. Minister refused her re- quest for extension of time three times, explaining that taxpayer had not provided extraordinary circumstances, she had not pre- sented error or delay on behalf of Canada Revenue Agency (CRA) and that guide explained in two locations that provincial rebate may be available where federal rebate was not. Taxpayer brought application for judicial review. Application dismissed. It was found that Minister's de- cision was reasonable based on information available and it was proper exercise of discretion granted pursuant to s. 256(3)(b) of Excise Tax Act. There were no circumstances beyond control of taxpayer that prevented her from applying within prescribed time period. There were no ac- tions of any employee of CRA that caused delay to taxpayer. Impugned wording in guide was not incorrect or inaccurate, albeit it could have been more clearly articulated. Lachance v. Canada (Na- tional Revenue) (2018), 2018 CarswellNat 5209, 2018 Car- swellNat 5290, 2018 FC 925, 2018 CF 925, Michael D. Man- son J. (F.C.). Tax Court of Canada Tax INCOME TAX AdministrAtion And enforcement Proposed amendments would facilitate consideration of true substance of litigation Taxpayer and taxpayer corpora- tion established general partner- ship. Partnership opened trading account with securities com- pany and realized certain losses, which were allocated to both taxpayers in accordance with their capital interests in partner- ship. Minister reassessed taxpay- ers and found that no losses were actually realized and income losses allocated were unreason- able. Taxpayers filed notices of appeal and Minister filed replies to notices of appeal, litigation deadlines were established, and examination for discovery held. Minister sent taxpayers draft amended reply on last date of deadline, to advance additional arguments that partnership's units were tax shelter within meaning of s. 237.1 of Income Tax Act for two taxation years, but taxpayers would not consent to proposed amendments. Min- ister brought motions for leave to file amended replies to notices of appeal. Motions granted. It was found satisfactory that amended reply in each of appeals passed test set out in section 54 of Tax Court of Canada Rules and s. 152 (9) of Income Tax Act. Motions to amend could not have come earlier, considering court's previ- ous order compelling Minister to serve taxpayers with draft of amended replies within short pe- riod of time. Motions to amend were made at early stage of liti- gation and amendments arose, in part, from evidence given by one of taxpayers' nominees dur- ing examination for discovery. Proposed amendments would undoubtedly assist in ensuring that all applicable provisions of Act were considered and would facilitate consideration of true substance of litigation, based on its merits. Thompson v. The Queen (2018), 2018 CarswellNat 5002, 2018 TCC 167, Réal Favreau J. (T.C.C. [General Procedure]). INCOME TAX employment income Taxpayer did not prove prima facie case that rebutted Minister's assumptions Taxpayer claimed employment expenses for home office, peri- odicals, insurance, repairs, car expenses, meals and entertain- ment, gifts, travel and com- mission. Minister of National Revenue denied deduction of claimed employment expenses of $87,647 because appropriate documentation was not pro- vided. Taxpayer appealed. Ap- peal dismissed. Taxpayer did not prove prima facie case that rebutted Minister's assump- tions. Section 8 of Income Tax Act did not allow deduction of commission payment in pur- chase of security. Form stated that taxpayer's travel and home office were not required for his employment. Ross v. The Queen (2018), 2018 CarswellNat 4649, 2018 CarswellNat 8095, 2018 TCC 165, 2018 CCI 165, B. Russell J. (T.C.C. [Informal Procedure]). INCOME TAX tAx AvoidAnce General Anti-Avoidance Rule did not apply to transaction in question Taxpayer bank wanted to lend United States dollars (USD) to number of its subsidiaries and bank chose to borrow funds from third parties and used "tower structure" to structure transaction for tax efficiency purposes. Transaction involved F LP, which was limited part- nership in which taxpayer had 99.9 per cent interest and in- vestment company NSULC that was wholly owned by F LP. However, taxpayer faced po- tential problem with hedging foreign exchange risk, because transaction had potential to mismatch capital gain and capi- tal loss. Taxpayer implemented modified "tower structure", that caused NSULC to have two classes of shares, which resulted in NSULC paying stock divi- dend instead of cash, and this, 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 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 Legal News at Your Fingertips Sign up for Canadian Legal Newswire today for free and enjoy great content. Visit canadianlawyermag.com/ newswire-subscribe ntitled-1 1 2019-01-24 9:56 AM

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