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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | APRIL 15, 2019 13 www.lawtimesnews.com Supreme Court of Canada Criminal Law DEFENCES Consent Accused took advantage of complainant by using personal feelings to secure her apparent consent Accused police officer was ac- quitted of sexual assault. Crown appealed. Court of Appeal found that trial judge erred in refusing to instruct jury on s. 273.1(2)(c) of Criminal Code, which provided that no consent was obtained where accused, by abusing posi- tion of trust, power or authority, induces complainant to engage in sexual activity. Court of Ap- peal set aside accused's acquittal and ordered new trial. Accused appealed. Appeal dismissed. In- struction under s. 273.1(2)(c) was warranted. It would have been open to jury to conclude that by abusing his position of trust and authority, accused took advan- tage of complainant, who was highly intoxicated and vulner- able, by using personal feelings and confidence engendered by their relationship to secure her apparent consent. Section 273.1(2)(c) is aimed at protection of vulnerable and weak and pres- ervation of right to freely choose to consent to sexual activity. In- ducing consent by abusing rela- tionships set out in s. 273.1(2)(c) did not imply same kind of co- ercion contemplated by s. 265(3) (d), which speaks to consent ob- tained where complainant sub- mits or does not resist because of exercise of authority. R. v. Snelgrove (2019), 2019 CarswellNf ld 120, 2019 Car- swellNf ld 121, 2019 SCC 16, 2019 CSC 16, Moldaver J., Kara- katsanis J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2018), 2018 CarswellNf ld 378, 2018 NLCA 59, B.G. Welsh J.A., C.W. White J.A., and L.R. Hoegg J.A. (N.L. C.A.). Federal Court of Appeal Tax INCOME TAX AdministrAtion And enforCement Taxpayer entitled to rely on expiry of normal reassessment period to finalize his tax payable In 2009, taxpayer established new pension plan in which he was sole member, which was registered as pension plan pursu- ant to Income Tax Act effective January 1, 2009, and transferred $640,080.91 to new plan. In 2013, Minister of National Revenue sent notice of intention to re- voke registration of new pension plan retroactively as of January 1, 2009 on basis that plan did not satisfy registration requirements. Twenty-eight days later Minis- ter provided notice of revoca- tion and also issued notice of reassessment for 2009 taxation year, which included amount transferred to new plan in tax- payer's income. Notice was sent on last day before expiry of time period that Minister was able to reassess this amount. Approxi- mately three and one-half years later, Minister concluded that notice was ineffective because it was sent two days earlier than permitted by Act. Minister sent second revocation notice which stated that it superseded earlier one and was being issued to cor- rect timing error, and that it was effective on retroactive basis to January 1, 2009. Appeal by tax- payer was dismissed. Tax Court of Canada determined that fac- tual basis for reassessment relied on by Minister did exist at time it was issued and that there had been no change to factual basis of reassessment. Taxpayer ap- pealed. Appeal allowed. Revoca- tion notice was factual element that was necessary in order to support legal basis of income in- clusion. In this case, applicable revocation notice was sent in 2017, which was long after limi- tation period had expired. This was not factual basis on which reassessment was based when it was issued, or when limita- tion period expired. Tax Court's conclusion relied on new factual basis and this was error of mixed fact and law which attracted palpable and overriding error standard of review. Taxpayer was entitled to rely on expiry of normal reassessment period to finalize his tax payable for 2009 taxation year. In issuing second revocation notice and relying on it for purposes of reassessment, Minister was in effect seeking to do away with limitation period. Mammone v. Canada (2019), 2019 CarswellNat 744, 2019 FCA 45, Donald J. Rennie J.A., Judith M. Woods J.A., and J.B. Laskin J.A. (F.C.A.); reversed (2018), 2018 CarswellNat 91, 2018 TCC 24, David E. Graham J. (T.C.C. [General Procedure]). INCOME TAX tAx Credits Parliament intended that "near equal" be interpreted as essentially or almost equal Taxpayer claimed one-half of Canada Child Tax Benefit (CCTB) and Goods and Ser- vices Tax /Harmonized Sales Tax (GST/HST) Credit in re- spect of his child on basis that he had custody of child for 40 per cent of time. Minister of National Revenue determined that taxpayer was not shared- custody parent and denied benefits for four taxation years. Tax Court judge dismissed tax- payer's appeal on ground that he was not eligible individual under s. 122.6 of Income Tax Act. Judge found that taxpayer resided with son less than 40 per cent of time and held that even 60/40 split would not qualify taxpayer as shared-custody par- ent. Taxpayer appealed. Appeal dismissed. Meaning of "shared- custody parent" for purposes of Act was to be determined with- out reference to Federal Child Support Guidelines. Based on text, context and purpose, Par- liament intended that "near equal" be interpreted as essen- tially or almost equal. Each par- ent had to reside 50 per cent or almost 50 per cent of time with child to reside with child on equal or near equal basis. Par- liament did not intend for time with child to be measured too precisely. Percentages should be rounded to nearest whole num- ber that was multiple of ten. Any percentage of time that could not be rounded off to 50 per cent would not qualify as near equal. Even if taxpayer resided with child 41 per cent of time, he did not satisfy requirement of residing on equal or near equal basis with child. Lavrinenko v. Canada (2019), 2019 CarswellNat 855, 2019 FCA 51, Wyman W. Webb J.A., Donald J. Rennie J.A., and J.B. Laskin J.A. (F.C.A.); af- firmed (2017), 2017 CarswellNat 6682, 2017 CarswellNat 6750, 2017 TCC 230, 2017 CCI 230, B. Paris J. (T.C.C. [Informal Proce- dure]). Federal Court Administrative Law PRACTICE AND PROCEDURE JudiCiAl review Applicants entitled to costs as they incurred expenses in seeking to assert their rights Applicants filed notice of ap- plication for judicial review of series of decisions made by respondents. Applicants filed applicants' record. Instead of filing respondents' record, re- spondents filed motion record for judgment, indicating that they would like to dispose of case in accordance with con- sent to judgment signed by re- spondents. Respondents did not obtain applicants' consent to this judgment. Applicants noted that Band Council had adopted new measures that had same effect as ones they were challenging. Applicants filed motion seeking directions. Case management conference was held. Parties agreed, inter alia, that applicants would file their consent to judgment in accor- dance with terms proposed by respondents, excluding issue of costs, and that applicants would file new application for judicial review. Issues arose concern- ing costs. Respondents to pay applicants' costs in lump sum of $1,500.00. Considering facts and law, and given discretion granted under R. 400(1) of Fed- eral Courts Rules and principles set out in case law, applicants had to be awarded portion of their costs. They incurred ex- penses in seeking to assert their rights, and they followed appro- priate steps in accordance with Rules. Case did not proceed to hearing on merits due to actions of respondents. Landry c. Conseil des Abé- nakis de Wôlinak (2018), 2018 CarswellNat 8470, 2018 Car- swellNat 8471, 2018 FC 1270, 2018 CF 1270, William F. Pent- ney J. (F.C.). Pensions FEDERAL AND PROVINCIAL PENSION PLANS federAl pension plAns Purpose of PSSA was to ensure public servants' financial security when they retired Parliament enacted Public Service Superannuation Act (PSSA) in 1985 to establish pen- sion plan for various categories of employees within federal public service. Taxpayer be- gan to work for spacecraft as- sembly and testing center that belonged to Government of Canada in 1983 and taxpayer was not hired under Public Ser- vice Employment Act (PSEA), but through third party private company that provided center with staff. Taxpayer received training, instruction and ev- erything he needed for his work by center and to center's clients, taxpayer was employee. Tax- payer received salary through third party company but had no interactions with company as part of his work, and taxpay- er's salary was based on public service pay scale. Taxpayer left center in 1995 and was hired by public service in 1997 and taxpayer sought to buy back his years of service from center, submitted application but Min- ister refused to recognize exis- tence of employer/employee re- lationship during years taxpay- er worked for center. Taxpayer brought application for judicial review. Application granted. It was found that Minister's decision was unreasonable in finding that taxpayer had no employment relationship with center. Reasoning adopted by Minister was complete perver- sion of test for establishing em- ployment relationship, as pur- pose of test was to determine whether genuine employment relationship existed beyond formal legal relationships par- ties put into place. One could not rely on those formal rela- tionships to conclude that test was not met, because that was circular reasoning and if review of contract and reality showed existence of employment rela- tionship, fact that parties acted in accordance with contract was not bar to such conclusion. Moreover, position adopted by Minister lead to absurd results, because it rewarded breach of contract, as it even allowed par- ties to manipulate results of ex- ercise by drafting contract that did not ref lect reality depend- ing on desired result. Purpose of PSSA was to ensure public servants' financial security when they retired but, in this case, there was every indica- tion that center wanted to hire taxpayer as employee, but that apparently to avoid certain ad- ministrative constraints, center put in place tripartite relation- ship involving certain private businesses. Céré v. Canada (Attorney General) (2019), 2019 Carswell- Nat 457, 2019 CarswellNat 458, 2019 FC 221, 2019 CF 221, Sébas- tien Grammond J. (F.C.). Tax INCOME TAX AdministrAtion And enforCement Disobedience of court order was serious matter and required specific deterrence Taxpayer was found to be in contempt of court pertaining to 2016 compliance order for pro- duction of specified documents. Order was issued and served on taxpayer in May 2018 that in September 2018, sentencing hearing would take place. On date of sentencing hearing, tax- payer did not appear. Minister sought order for fine and legal costs. Order granted. It was ruled that taxpayer was to pay $3,000 in fine and Minister's legal costs in amount of $1,800, and further order would follow 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 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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