Law Times

Law Times • augusT 23, 2010 after that consultation. Applicant claimed her daughter provided confi dential information dur- ing consultation. Respondent's counsel asserted that she spoke to parties' daughter in Man- darin during 15 to 20 minute telephone conversation in which she understood the daughter to be seeking general equalization advice on both parents behalf. Counsel asserted that daugh- ter never provided her parents' names or confi dential informa- tion. Applicant failed to depose that she had already retained her own counsel when she had her daughter make the phone call. Motion dismissed. Respondent's counsel evidence was preferred. Given timing of events and ap- plicant's failure to make full disclosure, phone call appeared to have been made to try to eliminate counsel from a future retainer because there were a limited number of Mandarin- speaking lawyers in Toronto. Gao v. Zhang (May 31, 2010, Ont. S.C.J., Czutrin J., File No. FS-09-016383) 189 A.C.W.S. (3d) 248 (5 pp.). FEDERAL COURT OF APPEAL Courts JURISDICTION Appeal doomed to fail as federal courts have no jurisdiction over action in tort between individual and municipal agency Motion for extension of time to fi le appeal from decision of Fed- eral Court. Applicant fi led state- ment of claim against munici- pal transit system and six of its employees for damages suff ered when he was allegedly assaulted by employees of transit system. Federal Court dismissed claim on ground that Federal Court lacked jurisdiction over defen- dants and subject matter. Ap- plicant appealed from that deci- sion in time provided by Federal Court Rules (Can.). In response to notice of status review appli- cant brought motion for exten- sion of time to fi le appeal. Appli- cant had neither set out reasons for delay in appeal or proposed timetable for remaining steps to be taken in appeal. Nor had he settled contents of appeal book, either by agreement or mo- tion. Motion dismissed. Rule 382.4(2) provides that if judge is not satisfi ed that proceeding should continue, he or she may dismiss proceeding. Here, appeal was doomed to fail as Federal Courts have no jurisdiction over action in tort between individual and municipal agency. Defen- dant was not Crown in right of Canada nor was it in any way agent of Crown. Consequently right of action against Crown found at s. 17 of Federal Courts Act (Can.), and enabling provi- sions of Crown Liability and Proceedings Act (Can.), were of no assistance to applicant. He had sued in wrong court. Ac- cordingly, motion for extension of time to fi le notice of appeal dismissed and appeal dismissed for delay. Xu v. Murphy (May 28, 2010, F.C.A., Letourneau, Pelletier and Trudel JJ.A., File No. A-41- 09) 189 A.C.W.S. (3d) 11 (5 pp.). Taxation GOODS AND SERVICES TAX City not entitled to claim input tax credits Appeal by Minister from Tax Court of Canada's allowance of respondent city's input tax credits. Respondent construct- ed transit system pursuant to obligations under City Trans- portation Act (Alta.) ("CTA"), and entered into funding agree- ments with province. Respon- dent paid GST on purchases made for construction. Munici- pal transit services were exempt supplies under Excise Tax Act (Can.) ("ETA"), but respon- dent claimed input tax credits on basis construction of system was supply to province, pursu- ant to their agreements. Minis- ter disallowed input tax credits claimed but Tax Court of Can- ada allowed them, so Minister brought this appeal. Prior to 2003, respondent claimed pub- lic service body rebates under s. 259 of ETA and received ap- proximately 56% of GST paid. In 2003, when transit materi- als purchased, respondent fi led GST return and claimed input tax credits while acknowledging rebates. Tax Court Judge found that province was recipient of supplies purchased for purposes of ETA because of agreements between respondent and prov- ince that required respondent to build transit system for province. Appeal allowed. CTA imposed obligation on respondent to implement approved transpor- tation plan, but sequencing of work was left up to respondent. Province had statutory author- ity to provide funding. Agree- ments between respondent and province stated province would provide 75% of funding and re- spondent provided warranty of good workmanship. However, agreements did not require re- spondent to provide province with a transportation system. If respondent had chosen not to apply province's funding to transit system, it would have still been required to construct a system pursuant to its own obligations under CTA. Tax Court Judge erred in fi nding re- spondent had obligation to build transit system for province. Th us, under ss. 169 and 123 of ETA, GST was paid for construction and operation of municipal tran- sit system, an exempt supply, and respondent could not claim input tax credits. Canada v. Calgary (City) (May 21, 2010, F.C.A., Blais C.J., Sharlow and Pelletier JJ.A., File No. A-250-09) 189 A.C.W.S. (3d) 254 (26 pp.). CASELAW ONTARIO CRIMINAL CASES Abduction IN CONTRAVENTION OF CUSTODY ORDER Conviction for abducting child under age 14 in contravention of provisions of custody order upheld on appeal Accused and M had child, G. When relationship ended and M moved out accused remained custodial parent. Court ordered accused to consult M on all major parenting decisions. Or- der also included that accused not move G from 50 km radius without prior written consent and to provide 90 days' written notice if she intended to move on permanent basis. Th ere were number of disputes over access and allegations of mistreatment made by accused. Accused in- formed M that she intended to move G to Vancouver without requisite notice. M obtained emergency ex parte order pre- venting removal. Accused made it clear to court-ordered assessor that she did not think she had to consult with M, notwithstand- ing any court orders. Final report from assessor joint custody. As next signifi cant court appearance recommended approached, accused and her mother began to set aside money and make preparations for abducting child. During Christmas accused took G and drove to Texas, where they lived in hiding until private investigator tracked them down. Accused convicted of abducting child under age of 14 in contra- vention of provisions of custody order. Appeal from conviction dismissed. Trial judge held that there were at least three other reasonable legal alternatives, but instead, many months before critical court date, accused had decided to abandon proceedings and abduct child. Trial judge was correct to withdraw defence from jury. R. v. K. (E.) (May 18, 2010, Ont. C.A., Rosenberg, Feldman and Watt JJ.A., File No. C48972) 88 W.C.B. (2d) 311 (6 pp.). Sentence PREVENTIVE DETENTION Sentencing judge did not simply rubber-stamp expert opinions Appeal by accused from sen- tence imposed on him after he was convicted of assault caus- ing bodily harm regarding inci- dent that involved his wife and of disobeying lawful court order not to have any contact with his wife. Accused was declared dan- gerous off ender and indetermi- nate sentence of imprisonment was imposed. He was originally charged with 17 off ences. Ac- cused claimed that when trial judge found there was no rea- sonable possibility that risk he posed to community could be www.lawtimesnews.com controlled he erred by relying on Crown's expert evidence, which was premised in part on con- sideration of circumstances that surrounded counts for which he was acquitted. Appeal dismissed. Judge made it clear, when he fash- ioned appropriate sentence, that he disregarded other counts, for which accused was acquitted and evidence that related to them. He did not rubber stamp opinions expressed by experts but carefully reviewed their evidence. Judge con- cluded that accused's risk could not be controlled in community after he carefully considered whole of evidence and correctly applied con- trolling legal principles. Sentencing disposition was both eminently reasonable and fully justifi ed. R. v. Bell (May 17, 2010, Ont. C.A., Moldaver, Cronk and Ep- stein JJ.A., File No. C48392) 88 W.C.B. (2d) 319 (5 pp.). Murder FIRST-DEGREE MURDER Trial judge's repeated instructions on bad character evidence alleviated concern that jury would have used evidence improperly Accused appealed his conviction for fi rst degree murder and home invasion charges. Crown alleged accused helped his close friend plan murder of witness who was going to testify against him and drove get-away car. Accused argued trial judge erred by per- mitting Crown to invite jury to engage in prohibited propensity reasoning, erred in ruling that accused violated rule in Browne PAGE 15 v. Dunn and erred in instruct- ing jury on co-conspirator's ex- ception to hearsay rule. Appeal dismissed. Crown focused al- most entirely on argument that accused was truthful when he told undercover offi cers he had driven get-away car. On few oc- casions Crown engaged in pro- pensity argument; however, it was isolated and likely had no ef- fect on jury. Trial judge's repeat- ed instructions on bad character evidence alleviated concern that jury would have used evidence improperly. Defence counsel did not criticize aspect of Crown's closing address, that accused now sought to challenge on ap- peal. Trial judge was correct in ruling that Browne v. Dunn had been violated. Defence counsel made tactical decision not to cross-examine witness on two matters that were at heart of ac- cused's defence. Lack of Browne v. Dunn instruction in charge to jury favoured defence. Even assuming co-conspirator in- struction should not have been given, it caused no prejudice to accused. On matters covered by instruction, Crown led direct evidence implicating accused. Defence counsel did not object to instruction and jury asked no questions about it, which sug- gested that it was of no conse- quence during trial. R. v. Hall (June 8, 2010, Ont. C.A., O'Connor A.C.J.O., Laskin and Gillese JJ.A., File No. C44241) 88 W.C.B. (2d) 367 (9 pp.). LT 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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