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Law Times • December 5, 2011 2011, Ont. S.C.J., Lemon J., File No. 31721/09) 206 A.C.W.S. (3d) 306 (18 pp.). Judgments and Orders SETTING ASIDE Failure to disclose was material misrepresentation Motion by plaintiff for order enforcing consent judgment, and cross-motion by defendant for order setting aside minutes of settlement and consent judg- ment based upon misrepresen- tation and mistake. Plaintiff s provided architectural services to defendant under agreement. Construction lien action was commenced. Parties settled litigation through mediation by way of minutes of settlement in 2008, resulting in consent judg- ment. Defendant discovered that plaintiff was voluntarily dis- solved in 2008, prior to minutes being signed. Defendant refused to transfer lots in accordance with consent judgment. Motion dismissed, and cross-motion granted. Consent judgment was set aside. Settlement had to be set aside based upon fact that plaintiff failed to disclose that he had surrendered his certifi cate and did not have liability insur- ance after January 2004. De- fendant entered into settlement agreement of construction lien for architectural services and set- tled that matter on presumption that plaintiff was certifi ed archi- tect. Settlement was entered into on basis of unilateral mistake, entitling defendant to order set- ting aside settlement and result- ing consent judgment. Failure to disclose was a material misrepre- sentation which would allow the agreement to be set aside in this matter. Dissolution of plaintiff did not aff ect validity of either minutes of settlement or consent judgment. Tonum Ltd. v. Oak Orchard Resort Inc. (Sep. 1, 2011, Ont. S.C.J., McDermont J., File No. 114/07) 206 A.C.W.S. (3d) 403 (17 pp.). Professions BARRISTERS AND SOLICITORS Assessment officer exceeded jurisdiction by imposing duty on solicitors to identify client Motion by solicitors opposing confi rmation of certifi cate of as- sessment by assessment offi cer following assessment of fees un- der Solicitors Act (Ont.). Solici- tors delivered bills of $4,153.02 and $101,669.57 for work done on two accounts. Assessment of- fi cer reduced award for second account from $101,669.57 to $35,785.13. Motion allowed to extent that clients were found to be jointly and severally liable. Certifi cate of assessment offi cer was confi rmed. Assessment of- fi cer exceeded his jurisdiction by imposing duty or onus on solicitors to identify client for strict purpose of establishing li- ability. However, assessment of- fi cer's error did not taint entire award. Other portions of assess- ment offi cer's reasons were suffi - cient and were amply supported by evidence. Reasons did not demonstrate any reversible error. Assessment offi cer drew reason- able inferences and conclusions based on evidence before him. Nicholas C. Tibollo Professional Corp. v. Wasserman Associates Inc. (Aug. 10, 2011, Ont. S.C.J., Goodman J., File No. CV-06- 0747-00) 206 A.C.W.S. (3d) 421 (21 pp.). TAX COURT OF CANADA Taxation GOODS AND SERVICES TAX Taxpayer involved in commercial activity despite being non-profit society Appeal by taxpayer from assess- ment by Minister under Excise Tax Act (Can.). Taxpayer was non-profi t organization which owned fi refi ghting equipment for use by volunteer fi refi ght- ers. Taxpayer acquired boat for use by fi refi ghters. Minister of National Revenue assessed tax- payer, denying input tax credit for purchase of boat. Appeal dis- missed. Boat was purchased to make exempt supply. Taxpayer was business involved in com- mercial activity despite being non-profi t society. Defi nition of business in s. 123(1) of Act has broad scope. No consideration existed for supply. Although tax- payer claimed that grant from province was consideration for supply of boat, there was insuf- fi cient evidence of direct link be- tween funds and supply of boat. All or substantial amount of tax- payer's activities were not made for no consideration. Documen- tary evidence regarding sources of funding for boat was entered at trial although notice had not been given. Sydney Mines Firemen's Club v. Canada (Aug. 26, 2011, T.C.C., Campbell J., File No. 2010- 611(GST)G) 206 A.C.W.S. (3d) 429 (14 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS No reason for judge sitting alone to include Vetrovec warning in reasons Appeal by accused from his con- victions for attempted murder and two fi rearms off ences. Trial was conducted by judge alone. Main issue at trial was identity, which turned on credibility, particularly that of the victim, who identifi ed accused as the as- sailant. Accused claimed judge failed to give himself Vetrovec warning regarding victim's evi- dence. Appeal dismissed. Ve- trovec warning was intended to alert juries to danger of relying on evidence of certain witnesses. Th ere was no reason for judge sitting alone to include warn- ing in reasons for judgment for judges knew risks of relying on testimony of witnesses like this victim. Crown's case depended on victim's testimony. Judge was CASELAW acutely aware of this and that victim's credibility was open to question. He properly consid- ered all of evidence and believed victim's identifi cation of accused after he scrutinized victim's evi- dence. Judge did not err in his analysis. R. v. Chevers (Sep. 1, 2011, Ont. C.A., Rosenberg, Sharpe and LaForme JJ.A., File No. C50777) 96 W.C.B. (2d) 363 (3 pp.). Sentence PROCEDURE Accused's unsworn statement from dock could not be used to circumvent cross-examination Accused pleaded guilty to pos- session of loaded prohibited fi re- arm. Crown alleged that accused and other men menaced youth outside community centre. Af- ter police were called accused was seen discarding a fi rearm as he fl ed police. Accused did not testify at sentencing hearing but made statement from the dock saying that he had only arrived at the scene shortly before police and that another man thrust gun into his hands and told him to run. Accused sentenced to 40 months. Accused's unsworn statement from the dock could not be used to circumvent cross- examination in establishing dis- puted mitigating factors. R. v. Nur (Aug. 30, 2011, Ont. S.C.J., Code J., File No. 40000591-0000) 96 W.C.B. (2d) 425 (46 pp.). Trial CHARGE TO JURY Officer's evidence hearsay, highly prejudicial and not admissible Accused appealed conviction for fraud. Crown alleged that accused knowingly deposited forged cheque into his busi- ness account. Accused, who was unrepresented by counsel, asked investigating offi cer why he was arrested and why offi cer did not conduct certain other investigations. Offi cer's preju- dicial opinion and investiga- tive hearsay was placed before jury. Trial judge failed to give jury limiting instruction as to use to be made of offi cer's evidence. Trial judge invited jury to use offi cer's opinion and other evidence to support allegation that accused must have known that cheque was forged. Appeal allowed, con- viction quashed, new trial or- dered. Offi cer's evidence was admissible for very limited purpose. Offi cer's evidence was hearsay, highly prejudicial and not admissible for its truth as item of evidence from which jury could fi nd that accused knew cheque was forged. Jury should have been directed that they could not use offi cer's tes- timony about investigation as evidence of guilt. Provision in s. 686(1)(b)(iii) of Criminal Code could not be applied, as offi cer's opinion gave jury clear route to conviction. Without offi cer's opinion case against accused was far from strong. R. v. Igbinedion (Sep. 2, 2011, Ont. C.A., Rosenberg, Gillese and LaForme JJ.A., File No. www.lawtimesnews.com C47576) 96 W.C.B. (2d) 431 (4 pp.). FEDERAL COURT OF APPEAL Taxation INCOME TAX Associate chief justice erred in law by failing to consider evidence of accountant Th is was appeal from Associate Chief Justice's dismissal of ap- peals from reassessments. Appel- lant operated hunting, fi shing and air charter business from 1978 to 1998 or 1999 when as- sets were sold and appellant re- tired. In 2004, CCRA request- ed that business fi le income tax returns for its 2001, 2002 and 2003 taxation years. Income tax returns were fi led by chartered accountant retained by appel- lant and business. Income tax return for 2003 taxation year indicated that business cashed $305,000 investment. CCRA audited business and appellant. CCRA increased appellant's income for 2003 taxation year by $305,000. Appellant fi led notice of objection but Minister of Revenue confi rmed reassess- ment. Appellant appealed to Tax Court. Associate Chief Justice found that appellant had not succeeded in destroying Min- ister's assumptions and appeals were dismissed. Appeal allowed. Associate Chief Justice erred in fi nding that appellant failed PAGE 15 to meet burden of demolish- ing Minister's assumptions that he received $305,000 during taxation year. Associate Chief Justice was looking for positive evidence that appellant had not received $305,000 in 2003 but appellant's burden was that of demolishing Minister's assump- tions and no more. Appellant of- fered evidence that was capable of establishing prima facie case demolishing Minister's assump- tions. Associate chief justice erred in law by failing to con- sider crucial evidence that was before him, namely, evidence of accountant. He gave no con- sideration to evidence because of view that source documents ought to have been produced, which was error. Accountant's evidence could not be disregard- ed just because he had not pro- duced supporting documents. Accountant's evidence was ca- pable of demolishing Minister's assumptions. Faced with ac- countant's evidence, Minister was bound to adduce evidence rebutting appellant's prima facie case by proving, on balance of probabilities, that assumptions were correct. Minister failed to adduce any evidence challeng- ing accountant's testimony. Ap- pellant's prima facie case was not rebutted and associate chief jus- tice ought to have concluded in favour of appellant. House v. Canada (Aug. 11, 2011, F.C.A., Nadon, Evans and Layden-Stevenson JJ.A., File No. A-261-09; A-262-09) Decision at 178 A.C.W.S. (3d) 883 was affi rmed. 206 A.C.W.S. (3d) 430 (34 pp.). When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. 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