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Page 14 May 25, 2015 • Law Times www.lawtimesnews.com view of reasonableness. Federal Court Judge did not err in find- ing that VRAB's decision not to remit matter to Minister was reasonable. Record showed that surviving spouse and daughter had already been granted maxi- mum compensation. Reviewing judge's refusal to order matter be remitted to Minister was neces- sarily reasonable because even if had done so, surviving spouse and daughter could not have received additional compensa- tion. Arial c. Canada (Procureur gé- néral) (Sep. 30, 2014, F.C.A., Marc Noël J.A., A.F. Scott J.A., and Richard Boivin J.A., File No. A-290-13) Decision at 230 A.C.W.S. (3d) 1073 was af- firmed. 251 A.C.W.S. (3d) 511. FEDERAL COURT Courts JURISDICTION Federal Court did not have jurisdic- tion to grant interlocutory relief Application was filed with Na- tional Energy Board pursuant to s. 52 of National Energy Board Act (Can.), to obtain certificate of public convenience and neces- sity for constructing and operat- ing 4,500 km long pipeline sys- tem between Alberta and New Brunswick. More than 1,500 km of new pipeline would be con- structed. Project was subject to board's approval process. This was motion for interlocutory in- junction before commencement of proceeding before board until publication of official languages' report or inclusion of French ver- sion of essential documents of application on board's website. Motion dismissed. Parliament's clear intention was to make Fed- eral Court of Appeal only court that had jurisdiction to hear ap- plications for judicial review or appeals against rulings made by board. Purpose of interlocu- tory injunction motion was to challenge ruling of board. Fed- eral Court was not appropri- ate forum. Appropriate way for moving parties to request stay of proceedings before board was to challenge board's ruling before Federal Court of Appeal. Federal Court did not have ju- risdiction with respect to main proceeding so therefore, it could not have jurisdiction to grant in- terlocutory relief. Federal Court had no jurisdiction to hear mo- tion. Centre québécois du droit de l'environnement c. Québec (Of- fice national de l'Énergie) (Feb. 16, 2015, F.C., Yves de Mon- tigny J., File No. T-167-15) 251 A.C.W.S. (3d) 444. TAX COURT OF CANADA Taxation GOODS AND SERVICES TAX Proposed guarantor was not required to comply with rebate conditions Purchaser entered into agree- ment of purchase and sale with builder to purchase home to be built. HZ was proposed guar- antor of mortgage to finance purchase of house, and signed purchase of agreement and sale for that reason, but backed out before closing. FR became guar- antor, but his replacement of HZ was not ref lected in agreement of purchase and sale. Minister of National Revenue denied purchaser's claim for new hous- ing rebate under Excise Tax Act (Can.), on ground that pur- chaser and HZ did not satisfy condition of having intention that property be their primary place of residence. Purchaser ap- pealed. Appeal allowed. HZ was not "particular individual" for purposes of s. 254(2)(a) of Act and was not required to comply with rebate conditions. HZ was only acting in capacity as agent in signing agreement of pur- chase and sale. Agent was not "recipient" as defined in s. 123(1) of Act. At commencement of hearing, Crown raised issue of whether purchaser intended property to be used as his pri- mary place of residence. It was not fair for Crown to raise issue at such late stage and it was not considered. Javaid v. R. (Apr. 17, 2015, T.C.C. [Informal Procedure], Judith M. Woods J., File No. 2014-1802(GST)I) 251 A.C.W.S. (3d) 525. INCOME TAX Auditor did not take into account fair market value of donated wine bottles on international level Taxpayer was wine aficionado who donated bottles of wine to charities. Wine bottles were auctioned off and proceeds were donated to registered charity in Gatineau, Quebec. In 2009, tax- payer donated three bottles of wine valued at amount of $350 each. In 2010, taxpayer donated three bottles of wine valued at total amount of $1,100. In 2011, taxpayer donated seven bottles of wine valued at total amount of $8,550. Minister reduced total amount of evaluation to $328, $344, and $2,672 for 2009- 2011 taxation years respectively. Taxpayer appealed Minister's assessments. Appeal allowed. Auditor did not take into ac- count fair market value of wine bottles on international level. Auditor erroneously calculated capital investment, custom fees, transportation, sales tax, and insurances. Taxpayer provided sufficient documentary evi- dence. Auditor did not contra- dict taxpayer's evidence. De Santis c. R. (Apr. 17, 2015, T.C.C. [Informal Procedure], Robert J. Hogan J., File No. 2014-670(IT)I) 251 A.C.W.S. (3d) 529. Natural health products at issue did not meet definition of "drug" in Income Tax Act (Can.) Taxpayer incurred expenses for natural health products, includ- ing vitamins, minerals, herbs and naturopathic supplements, that were prescribed to his spouse by naturopathic physi- cian to treat side effects of che- motherapy. Taxpayer claimed medical expense tax credit. Min- ister reassessed taxpayer under Income Tax Act (Can.), denying portion of claim as it related to such expenses. Taxpayer ap- pealed. Appeal dismissed. Tax- payer did not refute Minister's assumption that products could be purchased without prescrip- tion. Distinction in physician's letter between prescription drugs dispensed by pharmacist to spouse, for which taxpayer was allowed tax credit, and substances at issue supported inference that products at issue were not prescription drugs dis- pensed by pharmacist. Plain and ordinary meaning of definition of "drugs" in s. 118.2(2)(n) of Act required intervention of medi- cal practitioner in acquisition process and required prescribed substance to be legally obtain- able only with prescription. Fact that second requirement was added after judicial decisions al- lowed tax credit claims for cost of substances that were legally obtainable without prescription made it clear that Parliament's intent was to limit tax credit to medications lawfully obtainable only by prescription. ts at issue did not meet definition of "drug" in Act. Seriousness of spouse's life-threatening disease was not basis for distinguishing from binding precedent holding that definition did not infringe rights under s. 15 of Canadian Charter of Rights and Free- doms. Taxpayer also did not establish sufficient causal con- nection between by s. 118.2(2) (n) of Act and spouse's rights of security of person under s. 7 of Charter since, at most, it indi- rectly imposed higher cost for course of medical treatment. As found in binding precedent, economic rights engaged were not protected by s. 7 of Charter. Leeper v. R. (Apr. 16, 2015, T.C.C. [Informal Procedure], B. Paris J., File No. 2013-3881(IT)I) 251 A.C.W.S. (3d) 533. ONTARIO CIVIL CASES Bankruptcy and Insolvency DISCHARGE Damages award for bat- tery survived bankruptcy Defendant punched plain- tiff in jaw during recreational hockey game. Plaintiff broke jaw in three places. Defendant was found liable in damages for battery on basis that punch exceeded scope of plaintiff 's consent to application of force. Defendant went bankrupt be- fore satisfying damages award. Plaintiff brought motion for declaration under s. 178(1)(a.1) (i) of Bankruptcy and Insol- vency Act (Can.) that defendant was not released from obligation to pay damages. Motion judge held that damages award did not survive defendant's bank- ruptcy. Plaintiff appealed. Ap- peal allowed. Fact that punch was intentional did not bring damage award within s. 178(1) (a.1)(i) of Act. Defendant must also have intended for punch to cause bodily harm. Inference that defendant wanted to cause significant bodily harm was in- escapable. Defendant pulled off plaintiff 's helmet during recre- ational hockey game. Force of punch broke plaintiff 's jaw in three places. Punch was deliv- ered in retaliation for high stick by plaintiff that was not deliber- ate. Fact that there was only one punch did not preclude finding that defendant intended to and did cause bodily harm to plain- tiff. Motion judge erred in con- cluding that there was no intent to inf lict bodily harm. Dam- ages, interest and costs awarded survived defendant's bankrupt- cy pursuant to s. 178(1)(a.1)(i) of Act. Leighton v. Best (Mar. 18, 2015, Ont. C.A., P. Lauwers J.A., C.W. Hourigan J.A., and G. Pardu J.A., File No. CA C59426) 251 A.C.W.S. (3d) 385. Police LIABILITY IN TORT Breach of informer privilege gave rise to private right of action Plaintiff MS passed story from neighbour W that another neighbour's son, P had stolen guns from W's house and had taken them to school indirectly to police via friend R. R yield- ed to officer's insistence that he needed MS's name. Officer contacted MS, who eventually agreed to go to police station to provide statement. As part of Crown disclosure on pros- ecution of P, video recording of MS's statement was provided. P's father E began harassing MS and plaintiff family, in- cluding incident in which he drove truck at MS. Plaintiffs moved away from neighbour- hood. Plaintiffs brought action against police services board and certain police officers. Ac- tion allowed. On its face, privi- lege gave rise to duty to informer to protect identity from disclo- sure and from reprisals. While informer privilege had over- arching public purpose, breach of it, resulting in harm, gave rise to private right of action. There was sufficient proxim- ity between parties to recognize private law duty to plaintiffs, taking into account any relevant policy considerations. There was no spectre of indeterminate liability, given uniqueness of this case in jurisprudence. Effect that police might be required to be more careful in what they promised potential informers was no reason to not recognize private law duty to informer. Evidence, including testimony of MS and R, as well as MS's conduct after disclosure of iden- tity and surrounding circum- stances, established on balance of probabilities that MS only provided statement because she was given promise of anonymi- ty. Brief and casual discussion of anonymity at end of recording of statement suggested that this was culmination of earlier dis- cussion. Promise of anonymity given before MS made state- ment was clearly done to per- suade her to tell what she knew. Officer did not qualify prom- ise of anonymity in exchange for provision of information in any way. MS was entitled to informer privilege such that police should have taken steps to protect her identity from disclosure in P's prosecution. MS's consultation with R about conveying information to po- lice did not constitute waiver of privilege. Nissen v. Durham Regional Po- lice Services Board (Feb. 26, 2015, Ont. S.C.J., Gray J., File No. 2602/02) 251 A.C.W.S. (3d) 514. ONTARIO CRIMINAL CASES Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Officer did not have proper basis to arrest accused for robbery Application by accused, who was arrested for illegal pos- session of firearm, to exclude evidence of firearm because his rights under Canadian Charter of Rights and Freedoms were vi- olated. Accused and two friends, who were black, were walking in park when police officer asked to speak to them. Officer told them that he was investigating robbery of iPhone in nearby shopping centre and he told ac- cused and his friends that they matched description that police had of robbers. That description was simply that robbers were three black males. Other offi- cers attended and one of them was female officer named S who was central participant in this incident. Accused produced his iPhone but he resisted show- ing what was in other pocket. He was subdued and during struggle handgun fell out of his other pocket. Application al- lowed. Evidence of officers was problematic since they prepared their notes at station in presence of each other and they discussed what happened as they wrote their notes. This collusion un- dermined credibility and reli- ability of officers as witnesses to this incident. S could not remember where she made her notes and this detracted from her credibility and reliability. Her evidence was not accepted. S did not have proper basis to arrest accused and there were no reasonable grounds to sus- pect that accused was involved in robbery. Police description of robbers was meaningless. S only had hunch that accused had handgun and that was not enough either to search accused or to arrest him. Search of ac- cused's pocket and discovery of gun was unlawful search that vi- olated accused's rights under s. 8 of Charter. Police also did not have sufficient reason to engage CASELAW

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