Law Times

Law Times • July 13, 2015 Page 17 www.lawtimesnews.com R. Dawson J.A., and Richard Boivin J.A., File No. A-363-14) Decision at 242 A.C.W.S. (3d) 623 was affirmed. 252 A.C.W.S. (3d) 817. Taxation INCOME TAX Estate did not exercise required degree of care in reviewing tax return While V property was held as tenants-in-common by de- ceased and his daughter, ac- counting firm treated property as if it was held as partnership on terminal return. Incorrect characterization led to no re- porting of recapture of capi- tal cost allowance. Estate filed amended return which includ- ed recaptured capital cost al- lowance. Minister of National Revenue reassessed estate be- yond normal reassessment pe- riod and included recapture in income. Trial judge allowed es- tate's appeal on other grounds, but dismissed appeal in relation to reassessment of V property. Trial judge held that Minister was permitted to reassess after normal reassessment period to include in taxpayer's income recapture of capital cost allow- ance deductions from deemed disposition of property V. Trial judge held that accounting firm and executors did not meet standard of care in preparing and filing original return. Estate appealed. Appeal dismissed. There was misrepresentation in final return, as it initially did not include recapture from V property. Amended return did not nullify misrepresentation in original return as it was pre- pared after realization of capital loss by estate and covering letter was not clear that recapture was being included. Estate did not exercise required degree of care in reviewing original final tax return. As careful and prudent person, executor should have reviewed return and noted that V property was not included, which should have prompted questions. Evidence supported inference that if questions had been asked about why V prop- erty was not listed, that error re- lated to unreported recaptured capital cost allowance would have been found. Vine Estate v. R. (May. 19, 2015, F.C.A., Marc Nadon J.A., Wyman W. Webb J.A., and Richard Boivin J.A., File No. A-166-14) Decision at 238 A.C.W.S. (3d) 769 was affirmed. 252 A.C.W.S. (3d) 862. FEDERAL COURT Air Law AIRCRAFT Irreparable harm to public aviation safety outweighed com- mercial interest of applicant Applicant requested injunc- tion to silence issuance of Civil Aviation Safety Alert (CASA) that Minister of Transport con- cluded was necessary as safety measure for security of f lying public. CASA was to address risk from helicopter engine and drive train parts that applicant had allegedly improperly certi- fied. Minister said parts were already in use around world, failure of which could lead to catastrophic failure. Interim confidentiality order was grant- ed at outset for issues to be can- vassed to ensure that applicant's commercial interests were not jeopardized. Application dis- missed. Court did not find se- rious issue to be tried existed that would put into question reasonableness of CASA. Plans submitted by applicant were not found to be adequate to justify risk which would ensue. Ap- plicant admitted that it decided not to comply with request for listing of undocumented parts which it had certified due to ex- pense. Irreparable harm to pub- lic aviation safety outweighed any commercial interest of ap- plicant. Injunctive relief was de- nied and confidentiality order discontinued. Rotor Maxx Support Ltd. v. Canada (Minister of Transport) (Apr. 24, 2015, F.C., Michel M.J. Shore J., File No. T-2586-14) 252 A.C.W.S. (3d) 811. Immigration REFUGEE STATUS Conclusion that claimant did not work for Fund unreasonable Refugee claimant was citizen of Kingdom of Cambodia who alleged fear of persecution be- cause of his work as activist for Cambodia Global Fund in Cambodia. Claimant alleged that he was assistant director of Cambodia Global Fund from 2007 to 2011. Board found that claimant's career as activist with Cambodia Global Fund was unsupported by any trust- worthy corroborative evidence. Board found that website for Cambodia Global Fund, men- tioned in letter from its alleged Executive Director, did not ex- ist, although claimant's lawyer provided copies of website. On basis of apparent non-existence of website, board concluded that claimant did not work for Cambodia Global Fund. Board denied claim. Claimant applied for judicial review. Application granted. Despite concluding that website did not exist, board went on to make numerous findings on basis of exhibit that was purported to be printout of website, including finding that organization was based in Unit- ed States and not in Cambodia. Board's finding that organiza- tion was not based in Cambo- dia ignored substantial amount of evidence in record that pointed to existence of Cam- bodia Global Fund in Cam- bodia. Board also had before it evidence that one of claimant's visa sponsors was Cambodia Global Fund. On basis of all evidence that was before board, its conclusion that claimant did not work for Cambodia Global Fund was unreasonable, and this conclusion tainted whole decision. Cumulative effect of board's erroneous findings of fact that were central to board's credibility finding rendered de- cision unreasonable. Decision was set aside as it did not fall within range of possible, ac- ceptable outcomes. Yi v. Canada (Minister of Citi- zenship and Immigration) (Mar. 27, 2015, F.C., Danièle Tremblay-Lamer J., File No. IMM-5928-14) 252 A.C.W.S. (3d) 798. Industrial and Intellectual Property TRADE-MARKS Marks mislead consumers to believe associated services were subject to governmental authority or approval College asserted Canadian School of Natural Nutrition (CSNN) used marks as profes- sional designations. College asserted marks of CSNN were descriptive or deceptively mis- descriptive because they were professional designations. Col- lege applied to expunge five certification marks held by CSNN. Application granted. All five certification marks were deceptively misdescriptive and were not registrable pursu- ant to s. 12(1)(b) of Trade-marks Act (Can.). All of five certifica- tion marks were not distinc- tive at time this application was made and pursuant to s. 18(1)(b) their registrations were invalid. Three of certification marks were clearly descriptive at date of registration and were not registrable pursuant to s. 12(1) (b) and their registrations were invalid pursuant to s. 18(1)(a). Two of certification marks at time of registration were likely to lead to belief that wares or services with which they were used received governmental approval or authority contrary to s. 9(1)(d) and were not regis- trable pursuant to s. 12(1)(e) and their registrations were invalid pursuant to s. 18(a)(a). CSNN's marks were not clearly descrip- tive of services of professional designation because it did not seem on record that marks were used as professional designa- tions. CSNN was not describ- ing services that were generic to existing profession since there was no such existing profession as described by marks. CSNN was attempting, through use of marks, to bring about known professional group. Although marks did not simply refer to services generically performed by established professional, they still made it immediately plain to consumers what their associated services entailed, failing to distinguish services as coming from CSNN. Marks mislead consumers to believe that associated services were subject to governmental au- thority or approval. Evidence of enquiries made to college regarding CSNN's graduates helped show that there were instances of confusion regard- ing governmental oversight of services associated with marks. Marks did not acquire distinc- tiveness pursuant to s. 12(2). It was graduates' use of marks that was relevant use and that CSNN could not adopt this use, pursu- ant to s. 50(1). CSNN did not meet requirements of s. 50(1). There was insufficient evidence of direct or indirect control by CSNN over character or quality of graduates' services. College of Dietitians of Alberta v. 3393291 Canada Inc. (Apr. 14, 2015, F.C., Russel W. Zinn J., File No. T-394-14) 252 A.C.W.S. (3d) 809. Labour Relations JUDICIAL REVIEW Board misunderstood test for awarding dam- ages for mental distress Applicant had been employed in federal public service for over 35 years with clean re- cord. Applicant started to have behavioural issues with one of her employees. Employee physically assaulted applicant. Employee was transferred to different department. Ap- plicant was sent to see family physician and was referred for psychological services. Appli- cant made claim to Workplace Safety Insurance Board, which was approved. When employee returned to workplace to collect personal belongings, applicant barricaded office. Applicant was suspended for ten days. Applicant went on reduced hours on doctor's advice and then went on sick leave while continuing to see psychologist. Applicant filed grievance. La- bour Relations Board reduced ten-day suspension to oral rep- rimand. Employer was ordered to reimburse applicant for lost wages and benefits. However, board denied applicant's claim for damages for mental distress. Applicant applied for judicial review. Application granted. Standard of correctness applied to review of board's under- standing of law on legal test for damages for mental suffering. Board's application of law to facts was reviewed on standard of reasonableness. Board mis- understood test for awarding damages for mental distress. Board reasoned that discipline could not lead to damages be- cause it was not separate action- able course of conduct, but that was not correct understanding of law. Damages for mental dis- tress were based on reasonable foreseeability and independent actionable wrong was no longer required for claim to succeed. Board erred in law by misun- derstanding test for awarding damages for mental distress. Board failed to consider evi- dence. As result of failure to consider evidence and applica- tion of wrong test, board's deci- sion was unreasonable. Matter was referred back to same board for redetermination. Gatien v. Canada (Attorney General) (Apr. 27, 2015, F.C., John A. O'Keefe J., File No. T-1648-13) 252 A.C.W.S. (3d) 821. Professions BARRISTERS AND SOLICITORS Lawyer ought to have removed herself as counsel of record if not prepared to do competent job because of lack of retainer Refugee claimants retained lawyer to assist them in mak- ing refugee claim. Claimants met with lawyer once at her office for preparation of PIF. PIF narrative lacked detail and indicated that claimants would provide full evidence at hear- ing. Claimants subsequently moved to Saskatchewan and attempted to contact lawyer, however she did not return calls. Lawyer did not meet with claimants prior to hearing date to prepare for hearing. Claim- ants returned to Toronto for hearing, but did not have op- portunity to discuss claim with lawyer before hearing. Lawyer did not submit documentary evidence provided by claim- ants to board and indicated she had not done so as she was not properly retained from finan- cial perspective. Board found claimant unable to remember relevant dates and there were inconsistencies between his tes- timony and PIF. Board found claimants lacked credibility and did not provide sufficient cor- roborative and objective docu- mentary evidence to rebut pre- sumption of state protection. Board dismissed claim. Claim- ants applied for judicial review, contending that that lawyer's lack of preparation led to nega- tive credibility finding against claimants and cumulative effect of her conduct was inherently prejudicial. Claimants contend- ed that lawyer's incompetence caused breach of natural justice and procedural fairness. Ap- plication granted. Lawyer acted for claimants in making their claim and if she was not pre- pared to do competent job rep- resenting them because of lack of a financial retainer, then she ought to have removed herself as counsel of record. There was no merit to Minister's submis- sion that result would necessar- ily have been same in regards to credibility finding had solicitor done competent job of repre- senting these claimants. Kavihuha v. Canada (Minister of Citizenship and Immigra- tion) (Mar. 16, 2015, F.C., Russel W. Zinn J., File No. IMM-5465- 14) 252 A.C.W.S. (3d) 790. TAX COURT OF CANADA Employment Insurance CONTRIBUTIONS Court not bound by terms of contract where contract did not reflect realities of situation Minister determined that housekeeping services were in- surable employment although workers were held not to be employees. Head of agency ap- pealed from determination made by Minister that insur- able employment within mean- ing of Employment Insurance CASELAW

• Cover