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PAGE 14 CASELAW Internet and E-Commerce Law CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. FEDERAL COURT Civil Procedure COMMENCEMENT OF PROCEEDINGS Applicant failed to identify specific individuals who were party to alleged conspiracy Applicant was member of R.C.M.P. Applicant was dis- missed aſter conviction of two counts of criminal harassment. Applicant brought six making claims with respect actions to events leading up to convic- tions; R.C.M.P.'s suspension, surveillance and treatment of applicant; conspiracies allegedly engaged in by unnamed mem- bers of R.C.M.P.; and applicant's treatment at hands of Surete du Quebec. Prothonotary struck out statement of claim in en- tirety and dismissed action. Ap- plicant brought motion by way of appealing order. Motion was dismissed. It was plain and ob- vious that parts of statement of claim pertaining to Subpoena claim disclosed no reasonable cause of action. Statement of claim was to be struck in entirety. Tort of defamation could not be made out on basis of facts set out in statement of claim. It was not possible to link references to claims of negligence, criminal negligence and breaches of s. 7 of Canadian Charter of Rights and Freedoms, to allegations made earlier in statement of claim. It was plain and obvious that ap- plicant's allegations did not dis- close reasonable cause of action for intimidation or criminal ha- rassment. It was plain and obvi- ous statement of claim disclosed no reasonable cause of action in respect of tort of conspiracy to injure because applicant failed to identify specific individuals who were party to alleged conspiracy. Statement of claim disclosed no reasonable cause of action for malicious prosecution because applicant failed to plead material facts to establish elements of tort. Claims with respect to malicious prosecution and conspiracy to injure should have been included in one of prior actions. Statement of claim did not disclose reason- able cause of action under s. 7 in respect to removal claims. Appli- cant did not plead material facts that might suggest R.C.M.P. was aware when superintendent was requested to pose questions to applicant that applicant or family might be placed in danger. Some claims were struck out as frivo- lous and vexatious. It was not ap- propriate to grant leave to amend statement of claim. Sauve v. Canada (Sep. 16, 2011, F.C., Crampton J., File No. T-1- 10) 207 A.C.W.S. (3d) 17 (29 pp.). TAX COURT OF CANADA Taxation GOODS AND SERVICES TAX Consultations constituted supply of nursing services to individuals Appeal by taxpayer from assess- ment by Minister under Excise Tax Act (Can.). Taxpayer was clinic providing advice and vac- cines to persons traveling outside of Canada. Taxpayer was owned and operated by registered nurse and nurse practitioner, with 24- hour per day access to licensed medical physician. Taxpayer was not registered under Act during assessed period, did not collect GST/HST from its clients, and did not file GST/HST tax returns. Minister assessed taxpayer in re- spect of taxpayer's HST reporting ending between January 1, 2003 These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. and December 31, 2007. Tax- payer appealed. Appeal allowed. Assessment was referred back to Minister for reconsideration and reassessment on basis that taxpayer made exempt supply of consultation services and zero- rated supply of vaccine. Taxpayer constituted health care facility, since it was facility that was op- erated for purpose of providing medical care. Consultations pro- vided by taxpayer constituted exempt supplies under s. 6(a) of Schedule V of Act. Consultations constituted supply of nursing services rendered by registered nurse to individuals in health care facility. Nurses have training and skills to provide medical care to their clients. Jema International Travel Clinic Inc. v. Canada (Sep. 29, 2011, T.C.C., D'Arcy J., File No. 2009- 2465(GST)G) 207 A.C.W.S. (3d) 160 (19 pp.). INCOME TAX Transfer back to father constituted valid disclaimer Appeal by taxpayer from reas- sessment by Minister under In- come Tax Act (Can.). Taxpayer's father was registered owner of property. Taxpayer's father was indebted to Canada Revenue Agency. In 2006, taxpayer's father transferred property to taxpayer for no consideration. Taxpayer was not made aware of transfer. Taxpayer's father continued to reside at property, paying all ex- penses including utilities, prop- erty taxes, costs of upkeep, main- tenance and repairs. Taxpayer transferred property back to her father as soon as she became cog- nizant of transfer to her. Taxpayer filed income tax return for 2006 taxation year. Minister reassessed taxpayer under s. 160(1) of Act for value of $53,000. Appeal al- lowed. Section 160(1)(c) did not apply to taxpayer. Transfer was not caught by s. 160. Transfer back constituted valid disclaimer and, as such, there was no trans- fer, direct or indirect of property. Section 160(c) of Act will not ap- ply unless there is knowledge on part of transferee. Leclair v. Canada (Sep. 30, 2011, T.C.C., Angers J., File No. 2010- 482(IT)G) 207 A.C.W.S. (3d) 167 (11 pp.). ONTARIO CIVIL CASES Civil Procedure DISCOVERY Defendant had obligation to produce all documents, even those contrary to his interests Motion by plaintiff for order requiring defendant to pro- duce documents on last time he changed prescription, prescrip- tion next obtained aſter accident and whether he was wearing prescription sunglasses at time of accident. Plaintiff was attempt- ing to assist dog on road, when he was struck by defendant's vehicle. Plaintiff suffered cata- strophic injuries. In discovery, defendant, aged 73, confirmed he wore glasses and had eyes checked every year. In response to discovery question, defendant said he did not see plaintiff until plaintiff put his hand on the hood of defendant's vehicle and the sun was blinding that day. Defendant argued plaintiff was not entitled to requested documentation be- cause no such undertaking was made. Plaintiff argued defendant had ongoing obligation to make disclosure. Motion allowed. De- fendant had obligation to pro- duce all documents, even those contrary to his interests. Plaintiff was not aware until discovery that defendant wore glasses. De- fendant's answers made it clear he did not see plaintiff. While plaintiff could have pursued issue of prescription more vigorously during examination, production was necessary for trial fairness and would be easy and inexpen- sive for defendant to obtain. Notarandrea v. Dodd (July 22, 2011, Ont. S.C.J., Quigley J., File No. 07-CV-38064) 207 A.C.W.S. (3d) 44 (7 pp.). Equity DEFENCES Plaintiff did not prove defendant's conduct malicious, oppressive and highhanded Testator leſt life interest in income from net estate to wife. On wife's death remainder of estate was to be divided equally between son and daughter. Wife died. Daugh- ter claimed she did not receive share of testator's estate. Trust Company's file was lost. Court records showed no formal pass- ing of accounts. Plaintiff 's claim was dismissed. Plaintiff at no time received share of estate un- der terms of will. Distribution was one of fundamental duties of estate trustee. Estate trustee was liable to beneficiary. Action was statute-barred. Action was not commenced until 2005. Plaintiff could have learned all that was necessary within year of wife's death. Limitation period began to run March 1979 and expired in March 1985. Plaintiff 's claim was barred by operation of acqui- escence as first branch of laches doctrine. Delay in bringing case created situation which it would be unjust to disturb. Claim was barred under second branch of prejudice of doctrine of laches. Doctrine of fraudulent conceal- ment was not proven. Plaintiff did not lead sufficient evidence for punitive damages. While de- fendant was negligent and failed plaintiff in several respects, plain- ONTARIO LAWYER'S PHONE BOOK 2012 YOUR MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. More detail and a wider scope of legal contact information for Ontario than any other source: • More than 26,000 lawyers • More than 9,300 law firms and corporate offices • Perfectbound Published December each year On subscription $72 P/C 26089 ISSN L88804-559 Multiple copy discounts available Prices subject to change without notice, to applicable taxes and shipping & handling. 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