Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 25, 2019 13 www.lawtimesnews.com Supreme Court of Canada Estates and Trusts TRUSTS General principles Tenant's interest in Trust was mere hope that trustees would exercise discretion in manner favourable to her Landlord, public housing body, provided discretionary rental assistance program (RAP) to tenants meeting certain criteria. Tenant, person with disabili- ties, had interest in "Henson trust" (Trust) of which she was co-trustee. Landlord refused to consider tenant's rent assis- tance application because ten- ant would not disclose value of Trust. Tenant and employer pe- titioned for declarations regard- ing Trust. Court held tenant's interest in Trust was asset and ordered her to disclose value of Trust. Tenant's appeals to Court of Appeal were dismissed. Ten- ant appealed to Supreme Court of Canada. Appeal allowed. Tenant's interest in Trust was not asset that could disqualify her from being considered for rent subsidy. Tenant did not have enforceable right to receive anything unless and until trust- ees decided to exercise their discretion in her favour. Ten- ant's interest in Trust was mere hope that trustees would exer- cise their discretion in manner favourable to her. Tenant's sta- tus as co-trustee did not change fact that under terms of Trust, she had no fixed entitlement to assets and was precluded from unilaterally collapsing Trust for her benefit. S.A. v. Metro Vancouver Housing Corp. (2019), 2019 Car- swellBC 98, 2019 CarswellBC 99, 2019 SCC 4, 2019 CSC 4, Wag- ner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2017), 2017 CarswellBC 87, 2017 BCCA 2, D. Smith J.A., Bennett J.A., and Goepel J.A. (B.C. C.A.). Federal Court of Appeal Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans Reasonable remedy provided to compensate applicant for unavailability of audio recording of her testimony General Division of Social Se- curity Tribunal found that ap- plicant had not demonstrated that she suffered from severe and prolonged disability as of minimum qualifying period (MQP) date. Appeal Division of Tribunal dismissed applicant's appeal. Applicant brought ap- plication for judicial review. Application dismissed. Deci- sion of Appeal Division was not unreasonable. While doctors' reports expressed opinion of current disability, reports did not provide evidence that con- dition or disability existed as of MQP date. Reports by alternate healthcare providers did not speak to applicant's condition as of MQP date and did not pro- vide real diagnosis, treatment plan or prognosis. On eviden- tiary record, Appeal Division's conclusion that applicant failed to establish disability as of MQP date was reasonable. Appeal Di- vision provided reasonable rem- edy to applicant to enable her to compensate for unavailability of audio recording of her testi- mony before General Division. In circumstances where appli- cant's testimony was found not to be credible, applicant failed to demonstrate that Appeal Division proceeded in unfair manner. Wachowiak v. Canada (At- torney General) (2019), 2019 CarswellNat 169, 2019 FCA 18, J.D. Denis Pelletier J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A. (F.C.A.). Tax INCOME TAX administration and enForcement Despite evidentiary issues, affidavits provided evidence on which Tax Court was fully entitled to rely Taxpayer applied under s. 167 of Income Tax Act for orders extending time for her to file notices of appeal from reassess- ments for her 2003 and 2004 taxation years. Taxpayer as- serted that she did not receive notices of reassessment for 2003 and 2004 that were in issue, she did not file notices of objection to those reassessments and she did not receive related notices of confirmation that Canada Rev- enue Agency stated were sent to her. Application was dismissed. Tax Court of Canada found, based on its consideration of all of evidence, that on balance of probabilities Minister of Na- tional Revenue had sent notices of reassessment on one of two dates in March 2009. Tax Court ultimately found that taxpayer was not credible in her asser- tion that notices were not sent, that taxpayer's accountant had filed notices of objection, and that reassessments were subse- quently confirmed. Taxpayer appealed. Appeal dismissed. It was agreed that affidavit evi- dence submitted by Minister could have been more defini- tive. Despite evidentiary issues, affidavits provided evidence on which Tax Court was fully en- titled to rely. Tax Court made no reviewable error in finding that notices were sent. Gratl v. Canada (2019), 2019 CarswellNat 25, 2019 FCA 3, Wyman W. Webb J.A., Donald J. Rennie J.A., and J.B. Laskin J.A. (F.C.A.). Federal Court Law Enforcement Agencies POLICE orGanization oF police Forces RCMP created situation where failure of member was more likely than success Constable was member of RCMP for eight years. In 2009, constable was temporarily un- able to perform usual duties due to surgery on wrist. Constable had several meetings with su- periors about unsatisfactory performance and performance management procedure was put in place. Supervisor recom- mended that constable be paired with both experienced officer and mentor. Private and confi- dential information concerning constable was shared prior to assessment, including disciplin- ary measures. Supervisor rec- ommended dismissal and con- stable unsuccessfully appealed. On appeal, commissioner of RCMP held hearing and or- dered dismissal of constable on ground of unfitness, find- ing that it must show deference to decision of supervisors and evaluators. Constable brought application for judicial review. Application granted. Com- missioner deprived constable of right to impartial decision- maker. There was duty to make independent assessment of evidence to determine whether constable demonstrated unfit- ness and commissioner's state- ment that it must show defer- ence to supervisor had effect of biasing constable's position and creating situation of reasonable apprehension of bias. Commis- sioner's decision with respect to disclosure of private informa- tion was unreasonable. RCMP created situation where failure of member was more likely than success. Ménard c. Canada (Procu- reur général) (2018), 2018 Car- swellNat 8322, 2018 CF 1260, B. Richard Bell J. (F.C.). Torts INTERFERENCE WITH CONTRACTUAL RELATIONS contractual relational economic loss Canada Marine Act and agreements gave plaintiff exclusive possession of and possessory interest in bridge Corporation, plaintiff, man- aged and operated bridge that was damaged when vessel, owned by defendants, collided with it. Collision resulted in structural damage to bridge, which required significant re- pairs and halted passage over and through it for almost six months. Government of Cana- da established plaintiff as cor- poration that, at all material times, was not-for-profit cor- poration charged with manage- ment and operation of bridge, which was responsibility that arose out of s. 80(5) of Canada Marine Act and series of man- agement agreements entered into by plaintiff and Crown. These agreements put respon- sibility on plaintiff to make any 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 CanadianLawyerMag.com Get More Online 'SFTI$BOBEJBOMFHBMOFXTBOE BOBMZTJTBWBJMBCMFPOBOZEFWJDF ntitled-10 1 2019-02-22 10:01 AM

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