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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Taxation OIL AND GAS Judgment allowing action for income tax refunds was reversed on appeal Action for income tax refunds. I Inc. disagreed with Crown on manner in which Syncrude Remission Order should be taken into account in deter- mining I Inc.'s rights and obli- gations under Income Tax Act (Can.), for 1997 taxation year. Trial judge erred in agreeing with I Inc. and granted judg- ment for amount of alleged underpayment of remission, with interest. Trial judge was wrong to conclude, in relation to 1997, that there was diff er- ence between Syncrude royalty received by Alberta as deter- mined for purposes of s. 12(1) (o), and royalty receivable by Alberta as determined for pur- poses of Syncrude Remission Order. All of production for 1997 was from Leases 17 and 22. Th ere was no basis for dif- ferentiating between produc- tion from Syncrude Project as defi ned in Syncrude Remission Order (ie. production from Leases 17 and 22), and pro- duction from Expanded Syn- crude Project contemplated by Amendment No. 6, which in 1997 was also production from Leases 17 and 22. Royalty pay- able to Alberta with respect to Syncrude Project (as defi ned in Syncrude Remission Order) was royalty payable to Alberta under Alberta Crown Agree- ment as amended by Amend- ment No. 6. Crown was cor- rect in determining amount of remission for 1997 as it did. Further, there was no statute or regulation providing any entitlement to interest on pay- ment made to person pursu- ant to remission of tax, even if remission order resulted in re- fund of tax debt that had been paid. Th ere was no merit to I Inc. 's argument that it should be entitled to award of inter- est on basis that if no interest was paid, Crown was unjustly enriched. I Inc. had not estab- lished its entitlement to refund interest for 1997. I Inc.'s action dismissed. Imperial Oil Resources Ltd. v. Canada (Attorney General) (Nov. 12, 2009, F.C.A., Shar- low, Layden-Stevenson and Ryer JJ.A., File No. A-520-08) Decision at 170 A.C.W.S. (3d) 673 was reversed. Order No. 009/327/007 (23 pp.). SUPREME COURT OF CANADA Extradition And Fugitive Offenders SURRENDER It is "the essence of the offence" that is important on conduct-based approach to double criminality Per Charron J. (McLachlin C.J.C., Binnie, LeBel, De- schamps, Abella, Rothstein and Cromwell JJ. concur- ring). "Misalignment" test adopted by Court of Appeal was incompatible with three key components of extradition law: conduct-based double criminality; the foundational principle of comity; and the carefully circumscribed role as- signed to the extradition judge in the Extradition Act (Can.). Canadian off ence described in Authority to Proceed or com- mittal order does not have to "match" foreign off ence for which person is sought or sur- rendered in name or in terms of its constituent elements; it is "the essence of the off ence" that is important on conduct-based approach to double criminal- ity. Given that Minister was under no obligation to apply "misalignment" test, his failure to do so could not provide ba- sis for interfering with his de- cision. Per Fish J. (concurring in the result). Where there is no dispute as to essential ele- ments of foreign off ence, nor any question that there is com- plete lack of evidence on one or more of essential elements, it cannot be reasonable to order surrender without explanation. While explanation should nor- mally be provided by Minister, it may also appear from other materials before court on an application for judicial review. In this case, although Minis- ter's explanation for surrender was entirely inadequate, record provided suffi cient explanation to conclude that Minister did not act unreasonably. Fischbacher v. Canada (Minis- ter of Justice) (Oct. 16, 2009, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Roth- stein and Cromwell JJ., File No. 32842) Appeal from 78 January 18, 2010 • Law Times Follow on www.twitter.com/lawtimes COURT DECISIONS CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: Single or multiple copies of the full text of any case digested in this issue can be obtained by calling CaseLaw's photocopy department at (905) 726-5419, or 1(800) 565-6967. i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. W.C.B. (2d) 844 allowed. Order No. 009/293/076 (45 pp.). FEDERAL COURT Contempt Of Court GROUNDS Respondents in contempt of orders to provide information to Minister of National Revenue Individual and corporate re- spondents were ordered to pro- vide corporate fi nancial infor- mation and documentation to Minister of National Revenue. Minister moved for fi nding that respondents in contempt of orders. Motion allowed. Estab- lished beyond reasonable doubt that respondents wilfully failed to comply with terms of orders. Individual respondent evasive in testimony. Explanations for failure to produce material not believable or supported by evi- dence. Setbacks in business did not provide lawful excuse for failing to comply with disclo- sure obligations. Submission that documents could not be safely handled due to mould contamination unproven v. Kocsis (Nov. and contradicted by respondent's own conduct. M.N.R. 26, 2009, F.C., Barnes J., File No. T-671-08; T-672-08) Order No. 009/336/044 (14 pp.). Employment WRONGFUL DISMISSAL Adjudicator erred in upholding employee's dismissal Adjudicator erred in uphold- ing applicant employee's dis- missal from her employment with respondent bank. While adjudicator's fi ndings on kiting and misappropriation as having been encompassed by Code of Conduct were reasonable, there was no proportionality shown in dismissal of applicant or ad- judicator's evaluation of it. Ap- plicant was dismissed based on conduct related to her personal banking accounts. She did not steal, embezzle or commit fraud. Adjudicator acknowledged that she did not have criminal in- tent. Fact that activities in ques- tion occurred after work hours and in applicant's capacity as customer should have been considered mitigating factor. Further, applicant was given no warnings and no suspensions or other punishment. Nor was there any conclusive evidence of any signifi cant loss or risk to www.lawtimesnews.com bank. Nor did respondent seem to have consistent defi nition of what it viewed as kiting. Th ese mitigating factors, together with respondent's treatment of applicant during investigation and applicant's vulnerable state could not be ignored. Instead of looking at any of mitigating factors, adjudicators empha- sized applicant's lack of remorse, which was unfair consideration since applicant was simply at- tempting to defend case against her. Because of nature of pro- portionality analysis, decision by arbitrator was not justifi ed. Application for judicial review was allowed and matter referred to diff erent adjudicator for rede- termination. Royal Bank of Canada v. Wu (Sep. 18, 2009, F.C., O'Keefe J., File No. T-351-08) Applica- tion for judicial review from 23 D.E.L.D. 56 was allowed. Order No. 009/335/084 (46 pp.). ONTARIO CIVIL CASES Administrative Law JUDICIAL REVIEW Respondents not permitted to reargue issue of standing Charges brought against senior police offi cer as result of internal investigation went to disciplin- ary hearing. Adjudicator dis- missed motion for recusal on ba- sis of reasonable apprehension of bias. Th ere was no requirement in Ontario that adjudicator be named as respondent in appli- cation for judicial review. Issue of Commissioner's standing to bring application for judicial re- view was argued unsuccessfully in stay decision from which not appeal was taken. Respondents were not permitted to reargue issue of standing at hearing of application for judicial review. Ontario Provincial Police (Com- missioner) v. MacDonald (Nov. 13, 2009, Ont. C.A., Sharpe, Gillese and LaForme JJ.A., File No. C50442) Decision at 175 A.C.W.S. (3d) 934 was affi rmed. Order No. 009/320/032 (21 pp.). Civil Procedure COMMENCEMENT OF PROCEEDINGS "Brought" within meaning of art. 29 of Warsaw Convention requires only that claim be initiated On August 2, 2005, AF aircraft overran runway at PI Airport and was ultimately consumed by fi re. Action was commenced on August 1, 2007. However, notice of action and statement of claim were not served on sev- eral parties within time frame required by Rules of Civil Pro- cedure (Ont.). On September 30, 2008, Master Hawkins ex- tended time for service of state- ment of claim upon defendants that hat not yet been served, in- cluding UIA. "Brought" within meaning of art. 29 of Warsaw Convention requires only that claim be initiated, and does not require claim to be both initi- ated and served within two-year limitation period stipulated by Warsaw Convention. Master correctly concluded that limita- tion period contemplated in art. 29 of Warsaw Convention had been met. Mosregion Investments Corp. v. Ukraine Interntaional Airlines (Oct. 23, 2009, Ont. S.C.J. (Div. Ct.), Wilson J., File No. 247/09) Decision at 176 A.C.W.S. (3d) 338 was affi rmed. Order No. 009/321/003 (10 pp.). PLEADINGS Plaintiff 's allegation of sexual relationship with defendant was relevant to causes of action pleaded Plaintiff claimed damages in breach of contract, negligence and breach of fi duciary duty against her former investment advisor S., his supervisor V. and their employer RBC as result of failed investment relation- ship. Plaintiff pleaded she was sexually intimate with S. during time she maintained investment and trading accounts with RBC. Pleadings went further, describ- ing emotional and fi nancial ex- pectations she formed as result of her intimate relationship with S., and tying them to her pleadings of fi nancial loss. De- fendants' motion to strike out reference to sexual relationship between plaintiff and S. as well as any details about relationship was dismissed. In particular cir- cumstances of this case, plain- tiff 's pleading of alleged sexual relationship with her fi nancial advisor was relevant narrative in support of her pleaded causes of action, particularly those of neg- ligence and breach of fi duciary duty. Plaintiff failed to properly plead that foreign law governed some of investment transactions that occurred at diff erent points in time. Th ose portions of para- graphs referring to foreign law were ordered struck, but plain- tiff was granted leave to amend her statement of claim within 30 days to plead properly for- eign law.

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