Law Times

Page 14 OctOber 19, 2015 • Law times www.lawtimesnews.com FEDERAL COURT Constitutional Law CHARTER OF RIGHTS Decision to cease funding for certain religious services to inmates did not violate Charter Plaintiff commenced action for damages following minister of Justice's decision to cease fund- ing for certain religious ser- vices to inmates in federal cor- rectional facilities. Plaintiff al- leged that, as result of decision, he lost spiritual guidance of his imam. Prothonotary struck out plaintiff 's action. Plaintiff appealed on basis of negli- gence and breach of ss. 2(a), 7 and 12 of Canadian Charter of Rights and Freedoms. Appeal dismissed. It was plain and obvious that defendant had no duty of care that would oblige funding of imam for plaintiff. Section 2(a) of Charter was intended to prevent state from interfering with individuals' religious beliefs and practices, but did not extend to imposing positive obligation on state to provide plaintiff with free ac- cess to his preferred means of practising his religion. Failure of state to provide funding for imam for plaintiff did not con- stitute deprivation of plaintiff 's life, liberty, or security pursu- ant to s. 7 of Charter. Defen- dant's action to cease funding imams' services in federal cor- rectional facilities did not con- stitute cruel and unusual pun- ishment under s. 12 of Charter. Elliott v. R. (Jul. 17, 2015, F.C., George R. Locke J., File No. T-2099-14) 256 A.C.W.S. (3d) 315. Courts PUBLICIT Y Prothonotary's confidential- ity order upheld on appeal Motion for confidentiality order was brought in context of proposed class proceed- ing. Pleadings alleged that in November 2013, correspon- dence was mailed by Health Canada to class in envelope that displayed return address identif ying Health Canada's Marihuana Medical Access Program. Claim alleged that the inclusion and display of that return address constituted breach of contract, negligence, breach of confidence and pri- vacy as well as infringement of Canadian Charter of Rights and Freedoms. Approximately 40,000 individuals were said to have received that corre- spondence. In consequence, class actions were commenced in several jurisdictions. Ac- tions had not reached certi- fication stage. Prothonotary granted confidentiality order on basis that identif ying plain- tiffs personally disclosed their personal health and medical information, and their treat- ment program as prescribed by their medical doctor. It also went to central issue in case of whether plaintiffs' identity and personal information was pri- vate and should be kept con- fidential. Defendant appealed. Appeal dismissed. There was serious risk to plaintiffs' priva- cy and personal safety. While prothonotary erred in consid- ering injury to employment in her assessment of serious risk, it was not determinative to her decision. Unique facts in case, in which underlying dispute related to breach of pri- vacy, provided sufficient basis of support for prothonotary's findings given standard of re- view. Whatever reservations there may be about anony- mous representative plaintiffs in class action, that issue was best determined on full record and jurisprudence relevant to obligations of representative plaintiffs. John Doe v. R. (Jul. 24, 2014, F.C., Donald J. Rennie J., File No. T-1931-13) 256 A.C.W.S. (3d) 329. Taxation GOODS AND SERVICES TAX Federal Court lacked jurisdic- tion to hear application to enforce settlement agreement Homebuyer entered into con- tract for purchase of new home from builder in 2007 and took possession in 2011. Homebuyer received full credit for Goods and Services Tax (GST) new housing rebate as part of final closing statement. Homebuyer applied for Goods and Services Tax/Harmonized Sales Tax new housing rebate, including provincial new housing rebate. Homebuyer received transi- tional tax rebate credit. Cana- da Revenue Agency disallowed application, but then offered to refund homebuyer differ- ence between claimed amount and two previously credited amounts. Following homebuy- er's acceptance, agency found that it could not implement settlement agreement as home- buyer had already correctly re- ceived federal GST new hous- ing rebate and transitional rebate and was not entitled to Ontario new housing rebate. Homebuyer brought applica- tion for judicial review to en- force settlement agreement. Application dismissed. Federal court did not have jurisdiction to hear application for judi- cial review, pursuant to s. 18.5 of Federal Courts Act and s. 12(1) of Tax Court of Canada Act. Matter was in fact appeal of tax reassessment and fell within exclusive jurisdiction of Tax Court of Canada. Es- sential nature and character of claim was collateral attack on validity of tax reassessment. If court had jurisdiction to hear application, it would have held that the agency was required to revoke settlement agreement as homebuyer was not eligible for provincial new housing rebate under s. 256.21 of Excise Tax Act. Sood v. Minister of National Revenue (Jul. 13, 2015, F.C., Denis Gascon J., File No. T-1045-14) 256 A.C.W.S. (3d) 475. FEDERAL COURT OF APPEAL Taxation INCOME TAX Tax Court Judge did not err in analysis of deduct- ibility of legal fees In 1997, taxpayer's father died, leaving will naming taxpayer and taxpayer's siblings as re- sidual beneficiaries of father's RRSP account. By will, father's spouse was principal beneficia- ry of RRSP account, on condi- tion that spouse collapse RRSP into RRIF. Spouse did so, but taxpayer was of opinion that will restricted spouse to more conservative RRIF than that chosen by spouse. Taxpayer commenced proceeding for or- der to that effect, and Court of Appeal of province ultimately found in favour of spouse. Taxpayer then commenced allegedly distinct proceeding against financial institution for like remedy. Taxpayer sub- sequently deducted legal fees associated with proceeding against financial institution from his income from business or property on income tax re- turn. Minister assessed taxpay- er, disallowing deduction. Tax court dismissed taxpayer's ap- peal, concluding that, pursuant to s. 18(1)(a) and (b) of Income Tax Act, legal fees expenses are deductible only if incurred for purpose of gaining or produc- ing income from business or property. Court reasoned that fees incurred to recover "lost" residual-beneficiary value from father's estate was not matter in nature of business of taxpayer, and that if taxpayer's purpose was to obtain greater entitlement to value of estate, that greater entitlement would be by its nature on account of capital rather than on account of income from property, and so, would be non-deductible. Taxpayer appealed. Appeal dismissed. Taxpayer failed to establish that court judge erred in his analysis of deductibility of legal fees. For same reasons as those given by judge, it could not be said that deduction claimed could be considered as having been incurred to earn income for purposes of s. 18(1) (a) and (b) of act. Deschênes c. R. (Jun. 17, 2015, F.C.A., Noël C.J., A.F. Scott J.A., and Boivin J.A., File No. A-398-14) Decision at 243 A.C.W.S. (3d) 754 was af- firmed. 256 A.C.W.S. (3d) 482. ONTARIO CRIMINAL CASES Sexual Offences SEXUAL ASSAULT Conviction of pediatrician for sexual assault against non-patient complainant upheld on appeal Accused appealed his convic- tion for sexual assault. Ac- cused was pediatrician whose practice focused on children with behavioural problems. Accused was charged with 32 counts of sexual assault and sexual interference. Trial judge convicted accused of sexual as- sault with respect to one count relating to non-patient com- plainant. Complainant met accused when he was Grade 9 high school athlete. Accused was involved with students as medical doctor and wres- tling coach. Accused also took part in Bible study group for students at school. Complain- ant had challenging home life and at age of 15, he was liv- ing on his own in boarding house. Accused befriended complainant, gave him food, gifts, football cleats, camping trip and regularly invited him and his friends to his home. Complainant testified about three events which gave rise to allegations in question: one in kitchen; another involving his sore back; and third event on couch. Accused also testified about each incident. Appeal dismissed. Fair reading of trial judge's reasons demonstrated that he rejected evidence of accused and accepted evi- dence of complainant in con- nection with all three events. Trial judge rejected accused's testimony and indicated that evidence in its entirety did not raise reasonable doubt. It was open to trial judge to be scep- tical of accused's testimony in connection with apology. Ac- cused referred to trial judge's statement that there appeared to have been pattern of behav- iour in incidents described. It was submitted that trial judge applied impermissible similar fact reasoning. Even if court agreed with accused's inter- pretation, court would apply curative proviso. Alleged per- petrator and victim were same in each of incidents. Similar fact application would most certainly have been allowed. In criticising trial judge's dealings with complainant's testimony, accused was seeking to have court retry factual findings made by trial judge. There was evidentiary basis for each find- ing made. R. v. Marshall (Jul. 9, 2015, Ont. C.A., G.R. Strathy J.A., J.C. MacPherson J.A., and M.L. Benotto J.A., File No. CA C57220) 123 W.C.B. (2d) 496. ONTARIO CIVIL CASES Bankruptcy And Insolvency COURTS AND PROCEDURE Creditors were granted exten- sion of time to bring appeal Legal services relating to di- vorce proceedings were ren- dered to bankrupt taxpayer by creditor DM from 2008 to 2010, and creditor ML Corp. from 2011 on. Canada Revenue Agency filed and registered tax lien in amount of $227,042 in 2010 based on re-assessments and obtained jeopardy order in 2013. Creditor MB Corp. made loan to bankrupt taxpayer to pay two execution creditors. Bankrupt taxpayer filed pro- posal under Bankruptcy and Insolvency Act in 2014. Credi- tors and revenue agency filed proofs of claim. Application judge dismissed creditors' mo- tions for solicitor's liens and salvage lien in relation to ser- vices rendered or money lent to bankrupt taxpayers. Creditors brought applications for ex- tension of time to file notice of appeal and for leave to appeal. Applications granted. Credi- tors were granted extension of time to bring appeal. As this was decision of Bankruptcy Court, creditors were to bring appeal within 10 days, as ap- peal to Court of Appeal lies under s. 193 of act, rather than under Rules of Civil Proce- dure. Creditors had bona fide intention to appeal before ex- piry of appeal period but mis- apprehended applicable rules, which explained delay. There would be no prejudice to re- sponding parties in granting leave since funds were in court. Solicitor's lien and charging order were form of property 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.

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