Law Times

Page 13 Law Times • August 19, 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 OF APPEAL Appeal PROCEDURE Appeal of interlocutory decision carried risk that final decision would render appeal moot Appellant sought to strike out part of respondent airline's memorandum. Appellant brought complaint against airline in respect of certain tariff rules. Respondent agency made interlocutory decision dismissing appellant's motion to suspend impugned tariff rule pending disposition of complaint. Appellant appealed interlocutory decision of agency. Agency rendered its final decision on complaint. Agency argued appeal had been rendered moot by final decision. Appellant sought to strike out reference to final decision in memorandum. Application dismissed. Appeal of interlocutory decision carried risk that final decision would render appeal moot. It was open to airline to argue in memorandum that appeal was moot and should not be heard. It was open to appellant to argue to contrary. Lukács v. Canadian Transportation Agency (Mar. 6, 2013, F.C.A., K. Sharlow J.A., File No. A-46012) 227 A.C.W.S. (3d) 924. Taxation INCOME TAX Organization could not or would not bring itself into compliance Appeal by appellant from Canada Revenue Agency's confirmation of Minister's proposal to revoke appellant's registration as charitable organization based on list of non-compliance. Minister's notice of intent to revoke was issued following audit and listed grounds included appellant failed to demonstrate it devoted all of its resources to charitable activities, it failed to keep information to enable Minister to determine whether there were any grounds for revocation of registration, and failed to keep duplicate donation receipts. Appeal dismissed. There was evidence in record to support reasonableness of decision on all three grounds and it was not court's role to re-weigh evidence. Even if guidelines somehow restricted exercise of Minister's discretion to revoke, record supported fact that this was case of aggravated non-compliance as organization could not or would not bring itself into compliance. World Job and Food Bank Inc. v. R. (Mar. 5, 2013, F.C.A., Johanne Gauthier J.A., Noël J.A., and Trudel J.A., File No. A-382-11) 227 A.C.W.S. (3d) 1211. TAX COURT OF CANADA Employment Insurance ENTITLEMENT Taxpayer could not change status to employee unilaterally Appeal by taxpayer from decision by Minister denying taxpayer's application for employment insurance benefits. Taxpayer was executive chef at resort for six months. Minister found that taxpayer was not engaged in insurable employment for purpose of Employment Insurance Act (Can.). Appeal dismissed. Taxpayer and resort shared ongoing, common intention that taxpayer was independent contractor. Parties' negotiation of contract indicating taxpayer would be independent contractor at initial meeting was evidence both intended taxpayer to be independent contractor. Taxpayer could not change status to employee unilaterally after resort failed to reduce contract to writ- These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. ing. Given taxpayer's training and experience as executive chef and owner's inexperience, lack of supervision, control and training were not useful factors in determining taxpayer's status. Failure to hire assistants for costs reasons suggested ability to do so and was consistent with independent contractor relationship. Taxpayer's failure to work for others and freedom to come and go while at resort were consistent with independent contractor relationship. Taxpayer's declaration of ownership of, and claim for compensation in respect to, "signature dishes" strongly supported independent contractor relationship. Level of control was objectively consistent with parties' intention that taxpayer be independent contractor. Chance of profit was objectively consistent with status as independent contractor but risk of loss was not. Therrien v. Minister of National Revenue (Apr. 22, 2013, T.C.C. [Employment Insurance], David E. Graham J., File No. 20124957(EI)) 227 A.C.W.S. (3d) 1037. Taxation GOODS AND SERVICES TAX University not liable to collect and remit GST on parking fines Appeal by university from reassessment by Minister under Excise Tax Act (Can.), for period from April 1, 2003 to May 31, 2005. University had four types of parking spaces. Permit lots and visitor lots were identified with signs and visitor lots had more information indicating that vehicles not displaying valid receipts were subject to ticketing and impoundment. University hired people to patrol and enforce parking regulations and issue ticket to be left on car for infractions. On reverse of ticket it was written that traffic offence notice (TON) was issued under au- thority of s. 27 of University Act (B.C.). Appeal allowed. Reassessment was referred back to Minister for reconsideration and reassessment on basis that university was not liable to collect and remit GST on parking fines. By driver's conduct in taking parking space, knowing that there was requirement of permit of TVM ticket to prove payment and leaving without having complied, now with TON indicating that driver owed university $30, non-paying driver had, in accordance with reasoning of Federal Court of Appeal in 2000 judgment, struck deal with university. Contractual terms of contract between nonpaying driver and university did not provide for consideration for parking spot but agreement by non-paying driver to run risk of having to pay fine. There was no intention to breach agreement to pay for taxable supply of parking. University had statutory authority to invoke fine for traffic offence and this is what it did. Fines were imposed because non-paying drivers were effectively stealing. Notwithstanding there may have been contract, in these circumstances GST was not exigible on fine. Simon Fraser University v. R. (Apr. 22, 2013, T.C.C. [Informal Procedure], Campbell J. Miller J., File No. 2012-1698(GST)I) 227 A.C.W.S. (3d) 1201. FEDERAL COURT Administrative Law NATURAL JUSTICE Applicant received notice of hearings and had two opportunities to make case Applicant was full-time employee of band since 1976. There was no employment contract. Band adopted severance pay policy for full-time employees in respect of employment prior to 1997. Applicant argued decision deprived applicant of severance pay of two weeks for each year of service from 1976 until retirement in 2011. Band provided applicant with hearing. Applicant chose not to appear before council and make representations. Applicant did not appeal decision. Application for judicial review was dismissed. Policy or practice to pay severance for all employees was not established. There was no documentary evidence to support assertion that policy abolished pre-existing entitlement to two weeks of severance pay for every year worked. Decision could not be impugned on basis of procedural fairness. Applicant received notice of hearings and had two opportunities to make case. Belleau v. Garden River First Nation (May. 6, 2013, F.C., Donald J. Rennie J., File No. T-627-12) 227 A.C.W.S. (3d) 913. Immigration REFUGEE STATUS Failure to consider ground of persecution was breach of procedural fairness Applicants were denied refugee protection. Application for judicial review was allowed. Board erred in failing to consider applicant's evidence of gender-based persecution, namely domestic violence from ex-husband. Failure to consider ground of persecution was breach of procedural fairness. Ground was hinted at in PIF and was squarely raised in testimony and documentary evidence. Portions of evidence given in support of refusal had no relationship to evidence. Manner of questioning by member of board fell short of standard and used language that was highly inappropriate and unfair and irrelevant questioning. Proceeding was unfair. Inappropriate exami- CANADIAN LAW LIST 2013 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; Untitled-2 1 related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. MORE THAN A PHONE BOOK www.lawtimesnews.com Prices subject to change without notice, to applicable taxes and shipping & handling. Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation 13-08-08 1:14 PM

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