Law Times

Page 14 SePTeMBeR 14, 2015 • LaW TIMeS www.lawtimesnews.com FEDERAL COURT OF APPEAL Taxation INCOME TAX Charity merely conduit for agent Registered charity's objects in- cluded advancement of educa- tion through non-commercial television programs. Char- ity entered into broadcasting agreement with American charity to act as its agent in pro- curing and broadcasting televi- sion programs. Charity entered into fundraising agreement for agent to undertake fundraising activities on charity's behalf. Charity purchased pre-deter- mined set of television pro- grams selected by agent, rarely making any adjustments. Agent conducted its own fundraising and merely assigned Canadian donations to charity. Canada Revenue Agency upheld min- ister of national revenue's proposal under s. 168(1) of In- come Tax Act to revoke char- ity's registration as charity on ground that charity had failed to devote all of its resources to its own charitable activities as required by s. 149.1(1) of act as it was not exercising discretion and control over agent. Char- ity appealed. Appeal dismissed. Charity was not carrying on its own charitable activities through agent, but was merely conduit for agent. It was reason- able for minister to determine that charity failed to maintain direction and control over its resources as it did not devote all its resources to its own chari- table activities. Provisions of broadcasting and fundraising agreements were not followed or respected. Charity did not demonstrate how it monitored cost of broadcasting activities, donations received, and fund- raising. Evidence indicated that agent was conducting fundrais- ing activities on its own behalf and was using charity to issue receipts for donations received by agent from Canadian do- nors. Public Television Assn. of Que- bec v. Minister of National Rev- enue (Jul. 22, 2015, F.C.A., J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and A.F. Scott J.A., File No. A-406-13) 255 A.C.W.S. (3d) 786. FEDERAL COURT Air Law LICENCES Risk to air safety outweighed individual benefit to student pilot to receive licence Student pilot was physician who suffered from obsessive compulsive disorder and sig- nificant associated generalized anxiety disorder. Student pilot had been taking prescription medications for these condi- tions since at least 2004, and these conditions were well con- trolled. Student pilot took up f lying for recreational purposes in 2012. Student pilot complet- ed certain courses and training but was denied civil aviation li- cence by minister of transport. Denial was based on student pilot being treated with four medications. Student pilot un- successfully applied for review by one-member panel of Trans- portation Appeal Tribunal. Student pilot unsuccessfully appealed to three-member pan- el. Student pilot brought appli- cation for judicial review. Ap- plication dismissed. Standard of review was reasonableness, with deference to expertise of tribunal. Issue in this case was whether tribunal's decision rea- sonably, in its result, ref lected proportionate exercise as be- tween objectives of Aeronautics Act on one hand and Canadian Charter of Rights and Free- doms and Canadian Human Rights Act on other hand. Tri- bunal's decision was reasonable and had adequately taken into consideration student pilot's rights afforded by Charter and act. Minister's medical evi- dence was to effect that, while one could not say for certain, larger number of drugs being taken required more caution as to their effect, particularly with respect to sedating drugs. Tribunal was to consider is- sue having regard to its exper- tise and concern for air safety. Conclusion reached by tribunal was that risk to air safety out- weighed individual benefit to student pilot to receive licence. Student pilot had option of changing one drug, but noth- ing indicated he had done so. In light of available evidence, student pilot failed to establish he had not received appropriate individual assessment. Corneil v. Canada (Transporta- tion Appeal Tribunal) (Jun. 16, 2015, F.C., Roger T. Hughes J., File No. T-31-15) 255 A.C.W.S. (3d) 530. Immigration JUDICIAL REVIEW Even if refugee appeal division had applied appropriate stan- dard of review, conclusions it reached were not reasonable Main applicant and two chil- dren, minor applicants, were citizens of Republic of Nigeria. Main applicant was sold into slavery at age 11 to J and she was physically and sexually assault- ed by J's son I who was father of minor applicants and third child born in Canada. I wanted custody of children but he could only get custody if he married main applicant or she was dead and he would not marry her because she was slave. Main ap- plicant left Nigeria for fear that J and I would locate her and kill her in order to gain custody of minor applicants. Main appli- cant claimed that minor female applicant was at risk of female genital mutilation. Applicants' claim for refugee protection was rejected by refugee pro- tection division on basis that there was internal f light alter- native in Nigeria. Applicant ap- pealed. Refugee appeal division dismissed appeal. Applicants applied for judicial review. Ap- plication granted. Appeal divi- sion determined that standard of review was correctness but it conducted analysis of mer- its of appeal using standard of reasonableness. Appeal divi- sion did not conduct appeal on standard of correctness, which was error that was sufficient to grant application. Even if ap- peal division had applied ap- propriate standard of review, conclusions it reached were not reasonable. Ezedunor v. Canada (Minister of Citizenship and Immigration) (Jun. 24, 2015, F.C., Russel W. Zinn J., File No. IMM-5186-14) 255 A.C.W.S. (3d) 689. ONTARIO CIVIL CASES Assessment EXEMPTIONS Applicant was not organized for relief of poor and not exempted from municipal taxation Applicant was non-profit cor- poration. Applicant's clientele was mainly limited to mem- bers of First Nations. Appli- cant offered ser vices including pickup of patients and escorts from airport, delivery to ap- plicant and transportation to medical appointments. Short- term accommodation and meals were provided. Health Canada paid for applicant's ser vices as non-insured health benefit. Applicant sought ex- emption from municipal taxa- tion for its property pursuant to s. 3(1)-12 of Assessment Act on basis that it was organized for relief of poor. Application dismissed. Applicant was or- ganized primarily to provide temporar y accommodation and transportation to indi- viduals receiving necessar y health care away from their home. Applicant was not orga- nized for relief of poor and was not exempted from municipal taxation. Wequedong Lodge of Thunder Bay v. Thunder Bay (City) (Apr. 21, 2015, Ont. S.C.J., W.D. New ton J., File No. Thunder Bay CV-13-0507) 255 A.C.W.S. (3d) 542. Employment WAGES Employer tried to unilater- ally change terms of employee's commission arrangement Employer was manufacturer of medical ventilation and resus- citation equipment. Employer hired employee as engineer in 2002. In 2003, employer agreed to allow employee to tr y to sell employer's products in Iraq. Employer agreed to pay employee seven-per-cent commission on all "paid for sales" excluding Iraq. Com- missions for sales in Iraq were to be determined on "per proj- ect basis." Employee was paid seven-per-cent commission for relatively minor sales in Iraq. Employee never made any sales outside of Iraq. Em- ployer sold about $2.3 million worth of products to Iraq's Ministry of Health in 2006 but had to pay 34 per cent of this amount to Iraqi agent as fee. Employer removed employee from sales work and paid him only $19,751.56 for commission for this large sale. Employee CASELAW 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. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. LEGALFEEDS.CA A DAILY BLOG OF CANADIAN LEGAL NEWS FEEDS LEGAL POWERED BY V O T E D BEST NEWS BLOG CLAWBIES 2015

• Cover