Law Times

PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Taxation PROCEDURE Taxpayers failed to justify delay in proceeding with appeals Status review of taxpayers' appeals from judgment of Tax Court of Canada dismissing appeals from income tax assessments. Taxpay- ers had been denied charitable tax credits. Taxpayers appealed to Federal Court of Appeal fol- lowing unsuccessful appeal to Tax Court of Canada. Notices of status review were issued to tax- payers due to delay in perfecting appeals. Taxpayers claimed they required certain documents that had been seized by Canada Rev- enue Agency. Appeals dismissed. Taxpayers failed to justify de- lay in proceeding with appeals. Generally, only documents that were before Tax Court of Canada were to be filed in appeal books. Agency had expressed unwilling- ness to allow new documents to be included in appeal books. Tax- payers had not previously sought documents despite being advised of procedures for doing so. This failure to seek documents had been subject of comment in Tax Court of Canada's reasons. Tax- payers' delay was inexcusable. Coombs v. Canada (Attorney General) (Mar. 12, 2009, F.C.A., Nadon, Sharlow and Ryer JJ.A., File No. A-182-08; A-251-08; A-253-08; A-254-08; A-255-08; A-256-08; A-257-08; A-258- 08) Order No. 009/092/253 (20 pp.). FEDERAL COURT Customs And Excise SEIZURE Reasonably open to Minister's del- egate to confirm forfeiture of funds Application for judicial review of decision of Minister's del- egate pursuant to ss. 27 and 29 of Proceeds of Crime (Money Laundering) and Terrorist Fi- nancing Act (Can.). Decision confirmed seizure and forfeiture of funds without reduction. Ap- plicant, citizen of New Zealand, had responded to question from American customs authorities at Vancouver International Airport that he was not carrying funds in excess of $10,000 CDN. Inspec- tion of baggage by American and Canadian customs authorities. Applicant founded to have se- creted in baggage and on person moneys amounting to $70,000 CDN. Customs officials deter- mined there were reasonable grounds to suspect currency seized was proceeds of crime or funds for terrorist financing. Ap- plication dismissed. Applicant had failed to provide any le- gitimate documentary evidence or information to demonstrate that funds legitimately obtained. Reasonably open to Minister's delegate to confirm forfeiture. Ayobie v. Canada (Minister of Public Safety and Emergency Preparedness) (Mar. 16, 2009, F.C., Gibson J., File No. T-1117- 08) Order No. 009/096/106 (10 pp.). TAX COURT OF CANADA Aboriginal Peoples EXEMPTION FROM TAXATION Business income not situated on reserve Appeal by appellant, Indian within meaning of s. 2 of Indian Act (Can.) ("IA"), from income tax assessments for taxations years 1994 to 2003 on basis that business income was personal property situated on reserve within meaning of s. 87 of IA and therefore exempt form tax pursuant to s. 81 of Income Tax Act (Can.). Services provided by appellant to First Nations includ- ed conceptualizing, drafting, an- alyzing, explaining, translating, consecrating and teaching of tra- ditional concepts of Anishinaabe law. Clients resided on reserves. Clients included reserves, bands, Indian leaders, institutions, orga- nizations and groups. Appellant spent only between 15% and 30% of time on any reserve. Ap- peal dismissed. Business income not situated on reserve. Factors in favour of income not being on reserve had more weight than any factors connected to reserve. Types of counselling made avail- able through business to reserves and others aligned to reserves invaluable and met test of pre- serving traditional way of life in Indian communities. Appellant carried on business to very large extent off reserves. Residence in Winnipeg was centre or nucleus of business operations. Appellant was carrying on business as any other Canadian in a commercial mainstream. No nexus between business income and occupancy of reserve lands by appellant per- June 22, 2009 • Law Times COURT DECISIONS ainmaker_LT_June2_08.indd 1 CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/28/08 10:43:29 AM i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. sonally. Money when received by appellant ceased to have any- thing to do with reserve. Kelly v. Canada (Apr. 7, 2009, T.C.C., Rip A.C.J.T.C.C., File No. 2005-1710(IT)G) Order No. 009/103/011 (32 pp.). SUPREME COURT OF CANADA Taxation SALES TAX Licensed customs broker entitled to rebate of GST overpayment UPS, in its capacity as licensed customs broker, overpaid al- most $3 million in GST over two-year period. Overpay- ments not collected by UPS from its customers but rather reported in monthly GST re- turns by deducting amounts from its own GST liability as supplier of goods and services. Minister of National Revenue disallowed deductions but UPS successfully appealed to Tax Court. Federal Court of Appeal overturned Tax Court's decision. UPS once again ap- pealed. Appeal allowed. UPS entitled to rebate of overpay- ment. Although not person liable for the GST, it was per- son that paid amount on ac- count of GST within meaning of s. 261(1) of Excise Tax Act (Can.), which does not require inquiry into liability for pay- ment. Section 261(2)(c) of Act intended to avoid double pay- ment of rebates and does not preclude payment of rebates under s. 261(1) just because rebate could have been claimed under s. 215.1(1) or s. 216(6). UPS did not apply for rebate under s. 251.1(1), s. 216(6) or within two-year limitation pro- vided by s. 261(3) so ss. 261(1) and 296(2.1) applied. Section 296(2.1) relieves against limita- tion period in s. 261(3). Rebate would have been allowable had appropriate procedures been followed so Minister obliged to apply rebate to net tax as- sessed against UPS. Intermin- gling of rebates under s. 261(1) for overpaid GST on imported goods and for tax collected and remittable by UPS as remitting supplier authorized by Excise Tax Act. United Parcel Service Canada Ltd. v. Canada (Apr. 23, 2009, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 32546) www.lawtimesnews.com Appeal from 169 A.C.W.S. (3d) 450 allowed. Order No. 009/113/104 (19 pp.). ONTARIO CIVIL CASES Civil Procedure DISCOVERY Plaintiffs not permitted to examine separate witnesses Application by plaintiffs to be allowed to examine separate witnesses of defendant city for discovery. Both actions involved aborted light rail project and both plaintiffs alleged defendant breached contract intentionally and in bad faith. Parties con- sented to having actions tried to- gether with common discovery. Defendant argued agreement precluded them from examining two witnesses. Plaintiffs argued they never waived their full dis- covery rights. Application dis- missed. Even if parties had not agreed on common discovery, they would not have been al- lowed to examine separate wit- nesses. Rules of Civil Procedure (Ont.), only required party to an action to produce one wit- ness for examination. No need for plaintiffs to call separate wit- nesses in same action and any benefits to examining separate witnesses outweighed by effi- ciency of examining one. Addi- tionally, witness chosen by one plaintiff inappropriate because he was involved in project only very briefly. Defendant awarded costs of $10,000. Siemens Canada Ltd. v. Ottawa (City) (Apr. 7, 2009, Ont. S.C.J., Corbett J., File No. CV-07-1780- 00; CV-07-2922-00) Order No. 009/103/062 (7 pp.). SUMMARY JUDGMENT There were genuine issues of fact as to whether plaintiff delivered vacant possession Defendant individual in trust contracted to purchase lands from plaintiff. Defendant in- dividual's interest in trust was assigned to one of corporate defendants. $100,000 was to be held pending delivery of vacant possession. Plaintiff did not re- move underground fuel tank and contamination before clos- ing. Plaintiff claimed it delivered vacant possession and was en- titled to $100,000. Defendants claimed set off against $100,000 for work defendants had to do to make property right. De- fendants sought order dismiss- ing claim against individual. Plaintiff brought cross-motion for order requiring defendants to pay $100,000 holdback as damages for breach of contract. Plaintiff's motion was dismissed. There were genuine issues of fact as to whether plaintiff delivered vacant possession. Defendant's motion was allowed. It was plain and obvious plaintiff 's claim against individual defendant could not succeed. Kummer Holdings Inc. v. Quer- cia (Mar. 17, 2009, Ont. S.C.J., Flynn J., File No. 07-34522SR) Order No. 009/092/157 (8 pp.). Courts JUDGES Defendant protected by judicial immunity Appeal from Small Claims Court decision dismissing plaintiff's ac- tion for $10,000 against defen- dant judge. Action emanated from family court proceedings in which defendant refused to allow plaintiff's application to be represented by counsel chosen by her. Plaintiff appealed judge's decision and judge edited basis of her appeal out of court tran- script. Judge was found guilty of judicial misconduct and plain- tiff now alleged he commit- ted tort of injurious falsehood. Plaintiff argued Small Claims Court ruling lacked error in law and lacked reasons. Appeal dis- missed. Lack of reasons was an error as it was impossible to dis- cern from record specific reason plaintiff's action was dismissed. However, decision was correct and this court could give reasons so matter not remitted back for rehearing. Tort action was collat- eral attack on judge's ruling that plaintiff could appeal. Tort could not possibly succeed because de- fendant protected by judicial immunity. Judicial immunity expansive so even though editing transcripts was outside judge's jurisdiction and took place out of court, it was still within realm of judging and protected. M. (R.) v. Zuker (Apr. 3, 2009, Ont. S.C.J. (Div. Ct.), Low J., File No. DC-07-576-00) Order No. 009/098/034 (8 pp.). Family Law CHILD WELFARE It was in best interests of children to make order of Crown wardship with no access Application by Children's Aid Society for order of Crown wardship with no access for three children. Application brought as status review for older children and protection order for young- est. Older children apprehended

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