Law Times

April 15, 2013

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Page 17 Law Times • April 15, 2013 caselaw 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. FEDERAL COURT Courts JURISDICTION Federal Court had jurisdiction to review decisions of First Nation councils Application by member of First Nation for declaration that one resolution prepared by First Nation was void ab initio and for order quashing second resolution passed by First Nation's band council purporting to ratify first resolution. First Nation wanted provincial hydro company to pay present value of sum payable over 17 years. First Nation prepared first resolution formally approving receipt of accelerated lump sum payment and authorizing First Nation to provide full and final release. First resolution and release were signed by chief and four band councillors. Hydro company made lump sum payment. Band council subsequently passed second resolution ratifying first resolution. Application dismissed on other grounds. Federal Court had jurisdiction to hear matter. First Nation was "federal board, commission or other tribunal" that had exercised or purported to exercise jurisdiction or powers encompassed by s. 18.1 of Federal Courts Act (Can.). Jurisprudence held Federal Court had jurisdiction to judicially review decisions of custom First Nation councils and related agencies. Band council's decisions had not been "private law" decisions. First Nation derived its jurisdiction from both federal common law of aboriginal rights and its capacity to exercise federal statutory powers conferred on council of Indian band by federal Indian Act (Can.). Nature of jurisdiction exercised by band council was in relation to governance of First Nation and was matter of public interest given history that had led to entitlement to payments. Application had been brought in timely manner after second resolution had been passed to ratify first resolution. Gamblin v. Norway House Cree Nation Band Council (Dec. 20, 2012, F.C., Mandamin J., File No. T-434-06) 223 A.C.W.S. (3d) 807. Evidence OPINION EVIDENCE Expert's credibility affected by close personal relationship with taxpayer Ruling on admissibility of expert evidence. Taxpayer re- ceived shares in company from her spouse. Minister of National Revenue initially determined fair market value of these shares to be $708,155 for purposes of s. 160(1)(e) of Income Tax Act (Can.). Taxpayer requested reassessment. Minister determined fair market value of shares transferred for no consideration to be $546,835. Taxpayer appealed and called expert witness to opine on whether selling large blocks of shares affected share price. Expert had been self-employed as corporate development and investor relations consultant for 27 years. Evidence inadmissible. Expert was not credible witness, and for this reason alone his evidence was given no weight. Further, expert lacked expertise and impartiality required to provide court with opinion on fair market value of shares. Expert's credibility was affected by close personal relationship with taxpayer and her spouse as well as expert's failure to be forthcoming in his testimony. Expert lacked expertise in valuation since his services were in realm of corporate development and dealing with investors in client companies. Expert was not chartered business valuator, chartered accountant, chartered financial analyst, or certified general accountant. Expert had not even taken any valuation courses. Expert's experience had not caused him to acquire skills of valuator. Expert's objectivity was affected by fact that he was close friends with taxpayer's spouse. Great deal of expert's testimony was in nature of advocacy. Shulkov v. Canada (Dec. 31, 2012, T.C.C., D'Arcy J., File No. 2008-1842(IT)G) 223 A.C.W.S. (3d) 896. Social Welfare OLD AGE SECURITY No rationale for treating claim to retroactive benefits differently from late application Application by retiree for judicial review of decision of Old Age Security Review Tribunal dismissing appeal relating to start date of Old Age Security ("OAS") benefits. Retiree applied for OAS benefits but believed they were not payable until she stopped working. As such, retiree requested start date corresponding with end of her employment rather than when she turned 65. After being informed about her mistake, retiree requested retroactive adjustment. Minister of Human Resources and Skills Development refused. Retiree unsuccessfully appealed to tribunal. Application granted; matter These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. remitted for re-determination. Tribunal's decision was not reasonable having regard to tribunal's failure to consider statutory interpretation issue in contextual and purposive way. Tribunal adopted unduly narrow construction by holding that s. 5.1 of Old Age Security Act (Can.), and s. 5(1) of Old Age Security Regulations (Can.), precluded amendment requested by retiree. Act and regulations did not expressly prohibit requested amendment. It would have been simple task to draft provision that expressly excluded claim to retroactive benefits in circumstances like these. Section 8(2) of Act actually allowed applicant to claim up to one year of retroactive benefits where late application was made by mistake or otherwise. There was no apparent rationale for treating retiree's claim to retroactive benefits differently from late application on basis of similar misunderstanding. Larmet v. Canada (Minister of Human Resources and Skills Development) (Dec. 3, 2012, F.C., Barnes J., File No. T-739-11) 223 A.C.W.S. (3d) 895. ONTARIO CIVIL CASES Administrative Law JUDICIAL REVIEW Director obligated to file record of proceedings Motion by complainant for order requiring Independent Police Review Director to file record of proceedings. Complainant was involved in incident with municipal police and provincial police. Complainant filed separate complaints against both police forces with director. Director concluded it did not have jurisdiction to deal with either matter due to absence of apparent breach of Police Services Act (Ont.) ("PSA"), or its Code of Conduct. Complainant commenced application for judicial review. Director took position that it was not obligated to file record of proceedings. Motion granted. Director had exercised statutory power of decision within meaning of s. 1 of Judicial Review Procedure Act (Ont.) ("JRPA"). Consequently, director was obligated to file record of proceedings pursuant to s. 10 of JRPA. Any member of public could make complaint against police force pursuant to s. 58 of PSA. Ability to make such complaint was statutory right. Director had corresponding statutory duty to review every complaint and determine whether it was about www.lawtimesnews.com policies of or services provided by police. Director's decision at that stage was to screen complaints out, not to screen complaints in. Endicott v. Ontario (Director, Office of the Independent Police Review) (Nov. 2, 2012, Ont. S.C.J. (Div. Ct.), Kiteley J., File No. 42/12) 223 A.C.W.S. (3d) 742. Civil Procedure CLASS ACTIONS Additional fee made class counsel's compensation manifestly disproportionate to results achieved Appellant appealed motion judge's decision to award class counsel additional fee. This was class proceeding that alleged that appellant knowingly sent travellers to group of resorts in Dominican Republic while there was outbreak of norovirus at resorts. Parties reached settlement agreement that created settlement fund of $2.25 million for class of approximately 4,000 members. Appellant agreed to pay initial counsel fee of $600,000. Settlement was approved, including initial counsel fee. After settlement was fully administered $333,307 had been paid to 354 class members who submitted eligible claims, which represented take-up rate of 8.85% of class members or 16.7% of settlement fund. Additional class counsel fee of $395,000 was approved. Appeal dismissed. Motion judge's analysis minimized significance of actual recovery to class and led him to award fee that was grossly disproportionate to results achieved and risk undertaken. In context of case take-up rate had heightened significance that was not adequately recognized by motion judge in his analysis of value of settlement. When it was uncertain how many class members would make claims under settlement, it was when take-up rate was known that information relevant to assessing results achieved was present and it was then that connection between efforts of counsel and what was achieved for class could be assessed. Take-up rate was appropriate measure of results achieved, as it reflected actual benefit to class. Risk taken on by class counsel had already been recognized and rewarded. Result achieved was that approximately 9% of class received compensation through efforts of class counsel and compensation amounted to one-sixth of total negotiated fund. Addition of the $395,000 fee resulted in total class counsel fee of almost $1 million, which was nearly three times value of settlement to class. Approval of additional fee made class counsel's compensation manifestly disproportionate to results achieved for class. Fee of $600,000 was fair and reasonable compensation in circumstances and additional fee of $395,000 to class counsel was set aside. Lavier v. MyTravel Canada Holidays Inc. (Feb. 14, 2013, Ont. C.A., Laskin, MacPherson and Gillese JJ.A., File No. C55662) Decision at 212 A.C.W.S. (3d) 637 was reversed. 223 A.C.W.S. (3d) 778. Constitutional Law CHARTER OF RIGHTS Civil partnership entered into in United Kingdom was marriage in Canada Applicant brought motion for declaration that parties' civil partnership was marriage within meaning of Civil Marriage Act (Can.) ("CMA"). Parties were same sex partners. Parties developed romantic relationship in 2009. At that time applicant was practising architecture in United Kingdom while respondent owned and operated business in Toronto, Ontario. Parties decided to live together in United Kingdom, and in October 2009 they entered into civil partnership in United Kingdom under Civil Partnership Act 2004 ("CPA"). In January 2010, parties decided to relocate to Toronto. Relationship deteriorated. Applicant returned to United Kingdom in July 2010 but no longer had job. Applicant returned to Toronto in September 2010, but relationship further deteriorated. In February 2011, applicant accused respondent of assaulting him and relationship ended. In March 2011, applicant commenced proceeding seeking divorce, equalization of family property and spousal support. Respondent took position that parties were not married. Motion granted. United Kingdom did not permit same sex couples to marry. That position was contrary to Canadian public policy because under Canadian law, discrimination on basis of sexual orientation was prohibited under Canadian Charter of Rights and Freedoms. Under Canadian law, only equal access to marriage for civil purposes would respect same sex couples' right to equality without discrimination. As parties could not marry in United Kingdom but had to enter into civil partnership, they suffered discrimination on basis of sexual orientation. Union was lawful under laws of United Kingdom. It met statutory definition of marriage in Canada. Civil partnership parties entered into in United

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