Law Times

Law TiMes • May 3, 2010 TAX COURT OF CANADA Taxation Child was qualified dependent for purposes of goods and services tax credit Appellant was denied Canada child tax benefi t ("CCTB") and goods and services tax credit ("GSTC"). Appellant argued appellant qualifi ed for CCTB and GSTC in respect of child. Respondent argued CCTB and GSTC should be denied because child resided with father for rel- evant period. Appellant and fa- ther agreed appellant would be entitled to benefi ts. Appeal was allowed. Child had dual resi- dence throughout period. Child was not visiting appellant during relevant time. Respondent's argu- ment on requirement of primary caregiver was not mentioned in reply. Appellant and court were entitled to rely on pleadings for understanding of issues in ap- peal. Respondent's failure to state assumptions of fact supporting respondent's position likely re- sulted in prejudice to appellant. Both parents took active role in care of child. It made sense to follow parents' agreement. Child was qualifi ed dependent for pur- poses of GSTC during period. Caregiver test had no applica- tion because parents agreed ap- pellant was to receive benefi t for relevant period. Fraser v. Canada (Jan. 12, 2010, T.C.C., Woods J., File No. 2009-1037(IT)I) 186 A.C.W.S. (3d) 278 (11 pp.). ONTARIO CIVIL CASES Family Law SUPPORT Father to support older child until completion of teacher's college course of study Parties had two children. Older child, aged 27, and younger child, aged 22. Father assumed older child graduated from uni- versity after completion of four years of study. Father made re- quest to terminate child support obligation for older child. Moth- er argued older child was still child of marriage and had not completed studies. Older child returned to university for fi fth year to improve marks. Older child graduated with Bachelor of Science degree and immedi- ately after attended 12 months of study to graduate with Mas- ter's Degree in Education. Fa- ther remarried and adopted new spouses two children each of whom suff ered from Asperger's Syndrome. Father was to sup- port older child until comple- tion of teacher's college course of study. Older child lived at home during university and teacher's college. Older child's decision to become teacher was reason- able. Older child had relation- ship with father that contin- ued. Older child was no longer child of marriage as of speci- fi ed date. Mother's explanation for delaying to assert claim for retroactive support, retroactive extraordinary expenses and post secondary school expenses was insuffi cient to justify award of retroactive support beyond date of eff ective notice. Contribution to younger child's university ex- penses were apportioned 53% to father and 47% to mother from September 2010 to Spring 2011. Father was to pay 64% of expenses for younger child from 2006 to present. Father was to pay ongoing support for younger child of $873 per month. Sup- port for younger child was to terminate when younger child was expected to graduate from university with Bachelor of Arts with 53% contribution to ex- traordinary expenses. Haist v. Haist (Mar. 1, 2010, Ont. S.C.J., Taliano J., File No. 7413/07) 186 A.C.W.S. (3d) 180 (23 pp.). Evidence HEARSAY Criminal records were proper business records Society sought to have docu- ments entered as business re- cords. Society sought in al- ternative to have documents introduced as evidence of past parenting. Criminal records were proper business records. Records of arrest were proper business re- cords. Supplementary records of arrest were found to be business records. Synopsis of guilty plea was not admitted as business re- cord because it was not contem- poraneous. Criminal records, occurrence reports were relevant, and missing persons reports were relevant. Fact it was not best evi- dence would go to weight. None of specifi ed individual's state- ments were admissible for truth of contents unless corroborated by separate evidence. Supple- mentary record of arrest was not admitted because prejudice ex- ceeded probative value. Children's Aid Society of To- ronto v. L. (L.) (Feb. 2, 2010, Ont. C.J., Sherr J., File No. C41577/06) 186 A.C.W.S. (3d) 118 (14 pp.). Insurance DISABILITY INSURANCE Plaintiff was employee at time of motor vehicle accident Plaintiff was involved in motor vehicle accident. Plaintiff be- came disabled and was not able to work. Prior to accident plain- tiff worked as personal support worker providing home care. Plaintiff argued plaintiff worked in employment relationship with family of patient. Defendant ar- gued plaintiff was self-employed independent contractor. Parties sought determination of whether plaintiff was working as employ- ee or as independent contractor for purposes of determining how to calculate plaintiff 's income re- placement benefi ts. Defendant brought motion for summary judgment. Plaintiff was in em- ployment relationship at materi- al time. Plaintiff 's self-identifi ca- tion as independent contractor did not trump determination on facts. Declaration was made plaintiff was employee at time of motor vehicle accident. CASElAW Ligocki v. Allianz Insurance Co. of Canada (Feb. 22, 2010, Ont. S.C.J., Hennessy J., File No. C11133-08-OT) 186 A.C.W.S. (3d) 220 (20 pp.). Professions BARRISTERS AND SOLICITORS Duress was issue to be raised in action between plaintiff and solicitor Plaintiff suff ered injuries in motor vehicle accident. Plain- tiff brought motion to set aside minutes of settlement. Plaintiff claimed plaintiff was not com- petent at time minutes were entered. Plaintiff claimed lawyer representing plaintiff exerted un- due infl uence. Plaintiff argued settlement was unconscionable. Motion was dismissed. Plaintiff was competent to sign minutes. If there were duress between plaintiff and plaintiff 's solicitor at time it was issue to be raised in action between plaintiff and solicitor. Settlement was not unconscionable. Th ere was no imbalance of bargaining power. Th ere was no vulnerability of plaintiff that defendant would have knowingly taken advantage of. Plaintiff had independent le- gal advice throughout. Seguin v. Chaput (Feb. 26, 2010, Ont. S.C.J., Lafrance-Cardinal J., File No. CV-07-0386) 186 A.C.W.S. (3d) 70 (9 pp.). ONTARIO CRIMINAL CASES Extradition And Fugitive Offenders EVIDENCE Application for disclosure of criminal record of witness and order requiring Crown to produce witness for cross-examination was dismissed Person sought applied for disclo- sure of complete criminal record of principal prosecution witness and order requiring Crown to produce principle witness for cross-examination at extradition hearing. Person sought allegedly defrauded American residents of seven million dollars using telemarketing scheme. Person sought argued principle witness was uniquely dishonest and that witness's evidence was mani- festly unreliable. Application dismissed. It was not for court to determine witness's credibility. Person sought did not succeed in establishing real risk that rely- ing on presumption of reliability would lead to committal on ba- sis of manifestly unreliable evi- dence. Nothing to suggest that witness had any more criminal convictions beyond those already documented in materials, or that few more convictions beyond those already known would tilt balance in favour of fi nding that witness's evidence was manifestly unreliable. Evidence was not so unreliable that it could not prop- erly be put to jury. Cross-exami- nation of witness would go only to credibility and there was no air of reality that result would make evidence manifestly unreliable. www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 2/3/10 1:41:29 PM Starting from $62.50 per month More value for your money! Cases that you can't find anywhere else can be found in BestCase, a new web-based research service from Canada Law Book, containing: • Comprehensive collection of reported and unreported decisions dating back to 1898 and including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator eREPORTS included at no extra charge ... continuing legal education delivered to your desktop! BestCase subscribers can now receive our eREPORTS – electronic versions of "paper parts" of our law reports. Emailed to you, the eREPORTS link from the subject index to the full reported judgment (including headnote). No more photocopying required to get copies of decisions exactly as they appear in a law report! Only in BestCase will you find images of reported decisions as they appear in our law reports, in a pdf file, complete with headnotes. Also available are images of original judgments as released by the court, with the official court stamps and signatures. Disburse your costs! BestCase allows you to track research, generate reports and manage your passwords using the new Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! In face of application that was unmeritorious in its own right, delay that would result by grant- ing relief sought confi rmed view that orders were not warranted. United States of America v. Or- phanou (Mar. 23, 2010, Ont. S.C.J., Clark J., File No. 27/08) 87 W.C.B. (2d) 51 (10 pp.). Evidence CREDIBILITY Judge did not shift burden of proof or decide case simply by deciding which witness was more believable Accused appealed convictions for assault and assault with weapon. Complainant testifi ed accused threw her against wall and held knife to her throat. Accused ar- gued court misstated and misap- plied W.D. test. Accused argued trial judge erred in fi nding that complainant was credible wit- ness. Appeal dismissed. While trial judge articulated W.D. test in awkward terms, she concluded that Crown discharged its proof beyond reasonable doubt on to- tality of evidence. Judge did not shift burden of proof or decide case simply by deciding which witness was more believable. In absence of legal error or unreason- able and unsupported fi ndings of fact or inferences drawn, appel- late intervention was unwarrant- ed. Judge found complainant to be credible witness and provided reasons for disbelief of accused in- cluding manner in which he tes- tifi ed. Court was in no position to say judge's conclusions were unreasonable. It could not be said that verdicts were unreasonable PAGE 15 or unsupported on evidence. R. v. Bailey (Mar. 16, 2010, Ont. S.C.J., Hill J., File No. SCA(P) 3450/09) 87 W.C.B. (2d) 49 (10 pp.). Trial PUBLICITY Section 648 of Criminal Code violates s. 2(b) of Charter Media organizations intervening and challenging constitutional- ity of s. 648 of Criminal Code at trial of several accused. Accused and Crown bringing 25 pretrial motions to be argued before jury selection. Section 648 creating mandatory blanket publication ban of pretrial motions brought before jury selected until jury sequestered. Application grant- ed. Section 648 violates s. 2(b) of Charter and salutary eff ect of mandatory publication ban on fair trial right of accused not proportional to deleterious eff ect of rights and interest of public. Mandatory ban not proportional where pretrial motion concerns matter of intense current public interest and does not impair right to fair trial. Discretion for trial judge to grant leave for publica- tion of information where satis- fi ed publication would not im- pair right of accused to fair trial read in to s. 648. Burden on me- dia to bring application for leave to publish information about pretrial motions not impairing accused's fair trial interests. R. v. Valentine (Sep. 4, 2009, Ont. S.C.J., Pardu J., File No. CR-09-10000384-0000) 87 W.C.B. (2d) 30 (8 pp.). LT 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. LT0208

• Cover
• Benefit Woes
• Tax Traps
• Focus On Personal Injury Law