Law Times

Law Times • May 6, 2013 TAX COURT OF CANADA Taxation GOODS AND SERVICES TAX Imposition of GST on lawyers' fees did not infringe Charter rights Determination of question of whether or not imposition of GST on lawyers' fees for criminal defence services infringed rights of registrants' clients under s. 10(b) of Canadian Charter of Rights and Freedoms on appeal by registrant from assessment and imposition of interest and penalty under Excise Tax Act (Can.). Registrant law corporation failed to collect and remit GST on legal services it provided. It was determined that imposition of GST on lawyers' fees did not infringe client's Charter rights. It could not be said that s. 165(1) of Act had specific purpose of taxing legal services in defence of statesponsored prosecution. Parliament did not single out those particular services for different treatment under provision and registrant failed to show that s. 165(1) of Act had invalid purpose. Registrant did not provide any reasonably imaginable circumstances or hypotheticals that would demonstrate breach of s. 10 (b) rights. Right to counsel under s. 10(b) of Charter was not ongoing right throughout preparation and hearing stages, but was limited to time surrounding arrest or detention. Constitutionality of GST on criminal defence services was not question of law alone, and it was not apparent on its face that tax would impede access to counsel. Stanley J. Tessmer Law Corp. v. R. (Jan. 28, 2013, T.C.C. [General Procedure], B. Paris J., File No. 2007-3627(GST)G, 20073628(GST)G, 2007-3629(GST) G, 2007-3630(GST)G, 20073631(GST)G) 224 A.C.W.S. (3d) 508. ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Plaintiff 's interest in conflict with proposed class Plaintiff brought action on behalf of all land surveyors in Ontario who created plans of survey. Defendant managed electronic land registry system and made copies of plans of survey and sold them to public for fee. Plaintiff claimed nature of defendant's business was infringement of copyright of proposed class in plans of survey. Plaintiff sought disgorgement of profits, compensatory damages and statutory damages. Plaintiff sought permanent injunction. Plaintiff 's motion for certification of proposed class action was dismissed. Plaintiff satisfied cause of action require- Page 15 CASELAW ment except parts of claim for copyright infringement dealing with translation were struck out. Scanning plans to create digital format was not translation within meaning of s. 3(1) (a) of Copyright Act (Can.). Resulting digital plan of survey was not original work because there was no skill and judgment involved in scanning plans of survey. There was no evidence that any other surveyor wished to have copyright infringement complaint determined in class proceeding. Class had to be defined without elements that required determination of merits of claim. Common issues were rejected. Determination of consent was individual issue and had to be decided on individual basis. If defendant were successful in showing class members did not have copyright in plans or that all surveyors consented to defendant's use of plans, then class would consist of no surveyors and answer to common issues 1 and 2 would bind no one. Common issue was rejected because asking what defendant did would not advance litigation. There was no evidence that common issue 4 could be decided on common basis. Issue of entitlement to damages was not common issue. Issue of interest depended on findings of liabilities and damages which were not amenable to being certified as common issues. Common issue could not be decided on class wide basis and was rejected. Class action was not preferable procedure. Plaintiff was not representative of proposed class because its interests were in conflict with proposed class and it did not provide workable litigation plan. Keatley Surveying Ltd. v. Teranet Inc. (Dec. 14, 2012, Ont. S.C.J., C. Horkins J., File No. CV-10414169-00CP) 224 A.C.W.S. (3d) 268. TRIAL Defendant did not show charge to jury materially deficient Defendant insurer insured deceased under policy. Defendant insurer argued deceased cancelled accidental death policy in 1998 telephone conversation. Plaintiff beneficiaries of insurance policy brought action against defendant insurer. Plaintiff argued defendant cancelled accidental death policy by mistake and deceased intended to cancel different policy providing for supplemental health benefits. Deceased made statements years after cancellation evidencing deceased's belief that deceased had $2 million in insurance. Judgment admitted statements under state of mind exception to hearsay rule relating to insurance claim made by plaintiff estate. Defendant's appeal was dismissed. Trial judge erred in relying on state of mind exception. Statements when considered with confirmatory evidence had sufficient threshold reliability to warrant their reception. Evidence tended to confirm truthfulness of statements. Section 13 of Evidence Act (Ont.), applied only to evidence of executor and not to evidence of children. There was no reason to give s. 13 broad interpretation when considering its application or narrow interpretation when considering scope of evidence capable of corroborating evidence of interested party. Evidence corroborated evidence of executor. Defendant did not show charge to jury was materially deficient. Defendant did not show that alleged misdirection or non-direction in charge to jury resulted in substantial wrong or miscarriage of justice. Impugned instructions did not result in miscarriage of justice in respect of whether plaintiff proved policy was cancelled by mistake and defendant made mistake given repeated references to plaintiff having burden of proof. Brisco Estate v. Canadian Premier Life Insurance Co. (Dec. 5, 2012, Ont. C.A., M. Rosenberg J.A., S.T. Goudge J.A., and K. Feldman J.A., File No. CA C52435) 224 A.C.W.S. (3d) 349. Conflict of Laws JURISDICTION Fact damages suffered in Ontario not presumptive basis for establishing jurisdiction Landslide stopped operations at mine in Costa Rica and mine could not be reopened. Plaintiff was Toronto-based holding company. Plaintiff sought damages for negligence, negligent misrepresentation and breach of contract with respect to development, construction and operation of mine. Defendants were out-of-province. Defendants brought motion to determine whether court should assume jurisdiction over non-Ontario defendants. Court lacked jurisdiction simpliciter over defendants. Court declined to assume jurisdiction on basis tort was committed in Ontario. Case involved multi-jurisdictional torts. None of engineering work was performed in Ontario and all of physical damage occurred in Costa Rica. Connection to Ontario was based on presence of company's head office in Toronto which connection was relatively minor. Defendants rebutted presumption that Ontario had real and substantial connection with dispute. Fact plaintiff suffered damages in Ontario was not presumptive basis for establishing jurisdiction in Ontario. Court declined to assume jurisdiction on basis claim was against person carrying on business in Ontario. Evidence did not establish defendants had actual presence in Ontario to point where it could be found defendants carried on business in Ontario. Court declined to assume jurisdiction on basis of breach of contract committed in Ontario. Case did not involve breach of contract committed in Ontario. Central Sun Mining Inc. v. Vector www.lawtimesnews.com Engineering Inc. (Dec. 21, 2012, Ont. S.C.J., Stinson J., File No. CV-09-374510) 224 A.C.W.S. (3d) 308. Evidence HEARSAY Nothing to support claim judge erred with regard to standard of proof Appeal by mother from final order that granted CAS's summary judgment motion to make three-year-old child Crown ward for purpose of adoption by foster parents. Mother argued judge shifted burden of proof to her and relied solely on CAS's affidavit, which contained hearsay evidence. Appeal dismissed. Judge correctly applied Rule 16. Burden of proof and admissibility of evidence were questions of law, so standard of review was correctness. There was nothing in transcripts to support claim judge erred with regard to standard of proof. Burden was on CAS to prove no genuine issue for trial existed. Judge considered evidence adduced by mother but concluded that, even after considering it, there was no genuine issue for trial. Transcript made it clear judge was alive to frailties in CAS's evidence and did not place any weight on hearsay evidence. Many key findings of fact were not contested/admitted by mother: she did not always keep meetings with CAS workers, had issues with trustworthiness, alcohol problems and was inconsistent with access. Nelles v. Bruce Grey Child and Family Services (Jan. 15, 2013, Ont. S.C.J., Conlan J., File No. 12-0170) 224 A.C.W.S. (3d) 356. Torts LIBEL AND SLANDER Defendant did not knowingly or recklessly disregard truth Plaintiff brought action in libel. Defendant delivered letter to City Clerk addressed to councillors and mayor. Plaintiff claimed plaintiff was defamed by letter. Plaintiff claimed letter suggested he was involved in criminal activity, bribed city officials for favours and plaintiff 's conduct was reprehensible. Plaintiff pleaded defendant was actuated by malice. Action was dismissed. Reasonable persons reading letter would conclude that letter referred to plaintiff because it mentioned plaintiff by name. Letter was defamatory. Reasonable person would have regarded call for police inquiry as inferring person requesting it had reason suspect that influencing city government for favours was probably criminal in nature. Assertion that there were questions about plaintiff 's election finance donations was assertion of fact. Letter was adequate and accurate summary because it was sufficient to allow intended reader to form own conclusions about merits of defendant's comments. Assertions of fact were not protected by defence of fair comment. Comments were based on assertions of fact namely magazine article and assertions of fact were proven to exist because magazine article was proven to exist. Any person could honestly say what defendant said was comment and defence of fair comment applied to comments. Section 23 of Libel and Slander Act (Ont.), did not need to be considered because factual premises contained in letter were proven. Letter was delivered on occasion of qualified privilege. Defendant had legitimate interest in directing letter to city council for reasons defendant did, calling for investigation into serious allegations of unknown and unascertainable reliability which were reasonably seen as putting into question integrity of governmental processes for which city council was responsible. Members of city council who received letter had interest and duty to receive letter. Defence of responsible communication on matter of public interest was not available to defendant because case did not involve traditional media or new media dissemination of information. Finding of qualified privilege led to presumption defendant acted in good faith which rebutted malice presumed from publication of libellous words. Plaintiff failed to prove express malice. Defendant did not knowingly or recklessly disregard truth of what defendant stated in letter. Foulidis v. Baker (Dec. 27, 2012, Ont. S.C.J., John Macdonald J., File No. CV-10-0406396) 224 A.C.W.S. (3d) 521. ONTARIO CRIMINAL CASES Charter of Rights RIGHT TO COUNSEL Accused trying to delay matters by firing counsel on eve of trial Accused sought counsel be appointed for his upcoming trial that was to be held with or without counsel as he was facing 26 sexually related offences. Accused had fired his Legal Aid counsel on eve of trial on two separate occasions and Legal Aid refused to appoint another lawyer. Accused also sought counsel be appointed for another matter in different court where trial date had not been set. Court had appointed amicus to ensure accused received fair trial. Application dismissed. It was obvious to court that accused was simply trying to delay matters by firing his counsel on eve of trial on two prior appearances. Accused would get fair trial through amicus that was appointed. Court also reasoned that it was premature to consider appointing counsel for court on other matter. R. v. Richer (Feb. 26, 2013, Ont. S.C.J., Turnbull J., File No. 1773/11) 105 W.C.B. (2d) 217. LT

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