Law Times

Law Times • February 1, 2016 Page 13 www.lawtimesnews.com 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. FEDERAL COURT OF APPEAL Aboriginal Peoples CROWN RELATIONSHIP Crown adequately ful- filled its duty to consult Majority of residents of hamlet located on northeast coast of Baf- fin Island were Inuit and for gen- erations people of hamlet relied upon harvest of marine mam- mals in Baffin Bay and adjoining Davis Strait for food security and economic, cultural and spiritual well-being. Area populations of bowhead whales had been identi- fied as "threatened" and narwhal of Eastern Arctic had been identi- fied as being of "special concern". Proponents applied to National Energy Board for geophysical op- erations authorization (GOA) to undertake two-dimensional off- shore seismic survey program in area. Board issued GOA to pro- ponents on specified terms and conditions. In environmental as- sessment, board concluded that project was not likely to result in significant adverse environmen- tal effects. Hamlet, mayor and hunters and trappers organiza- tion applied for judicial review of board's decision. Application dismissed. Crown adequately fulfilled its duty to consult with Inuit in regard to project. Nature and scope of process afforded by board was sufficient to uphold honour of Crown. Process pro- vided timely notice of project to potentially affected aboriginal groups. Board held meetings at which community members could address concerns. Propo- nents changed aspects of project's design as result of consultation process. In its environmental assessment board assessed con- cerns raised by aboriginal groups and responses and undertakings of proponents. Terms and condi- tions imposed on GOA shaped how project would go forward and allowed aboriginal concerns to be expressed at later stages of project process. Board's process afforded meaningful consulta- tion sufficient that Crown might rely upon it to fulfill its duty to consult. Environmental assess- ment and terms and conditions imposed upon GOA provided reasonable degree of accommo- dation of applicants' concerns about potential impacts caused by project upon their harvesting rights under s. 35 of Constitution Act, 1982. Clyde River (Hamlet) v. TGS-NOPEC Geophysical Co. ASA (TGS) (Aug. 17, 2015, F.C.A., M. Nadon J.A., Eleanor R. Dawson J.A., and Richard Boivin J.A., File No. A-354-14) 260. A.C.W.S. (3d) 432 EXEMPTION FROM TAXATION Judge did not err in applica- tion of "connecting factors" test Aboriginal taxpayers were em- ployed by employment place- ment service NLS, providing their services to not-for-profit ab- original organizations. NLS was sole proprietorship whose owner was situated on reserve. Taxpay- ers, apart from one, did not live on reserves. Minister assessed taxpayers on basis that employ- ment income from NLS was not exempt from income tax. Tax- payers' appeals were dismissed. Taxpayers appealed to Federal Court of Appeal on ground that salaries owed to them were a simple debt, situs of which must be determined in accordance with common law principle that debt situated at location of em- ployer. Appeal dismissed. Court had previously held "connecting factors" test should be applied to determine where employment income is situated. Judge did not err in law by applying "connect- ing factors" test to determine whether salaries were property "situated on a reserve". Zoccole v. R. (Nov. 18, 2015, F.C.A., Eleanor R. Dawson J.A., Ryer J.A., and Webb J.A., File No. A-474-14, A-475-14, A-542-14) Decision at 244 A.C.W.S. (3d) 487 was affirmed. 260 A.C.W.S. (3d) 426. Taxation INCOME TAX Minister was not obliged to verify whether taxpayer actu- ally received notice Taxpayer brought notice of ob- jection to minister's reassess- ment. Minister sent notice of ratification to taxpayer. Taxpayer failed to claim notice of ratifica- tion, and Canada Post returned notice to Canada Revenue Agency. Minister sent second notice of ratification, and tax- payer appealed minister's notice of ratification. Minister found that taxpayer had failed to bring appeal within 90-day period and brought motion seeking dismiss- al of appeal on ground that tax- payer failed to institute his appeal within time prescribed. Appeal was dismissed, and judge found minister complied with its obli- gation to notify taxpayer in writ- ing by sending notice of ratifica- tion via registered mail. Minister was not required to serve its deci- sion to taxpayer personally or to prove that it was received by tax- payer. Therefore judge concluded that 90-day period to file appeal under s. 169(1) of Income Tax Act was not respected. Taxpayer appealed. Appeal dismissed. Judge did not err in his applica- tion of act to facts in dispute. Evidence was clear to effect that notice of ratification was sent to taxpayer by registered mail to ad- dress provided by taxpayer him- self. Neither s. 165(3) nor s. 169 of act required notice be served or evidence be made that it was received by taxpayer. Minister was not obliged to verify whether taxpayer actually received notice that was sent by registered mail, provided he proved he sent no- tice to address provided by tax- payer. There was no need to dis- tinguish between first-class mail and registered mail for purposes of this issue. Rossi c. R. (Nov. 26, 2015, F.C.A., Gauthier J.A., Boivin J.A., and Yves de Montigny J.A., File No. A-109-15) Decision at 249 A.C.W.S. (3d) 900 was af- firmed. 260 A.C.W.S. (3d) 636. FEDERAL COURT Constitutional Law CHARTER OF RIGHTS Charter does not provide posi- tive right to refugee protection Foreign nationals were citizens of Afghanistan. Officer found prin- cipal foreign national was senior official in Afghan government from 1995 to 1997, which over- lapped with rule of Taliban, re- gime designated by minister pur- suant to s. 35(1)(b) of Immigra- tion and Refugee Protection Act. Given this determination, officer found foreign national and his family inadmissible by operation of s. 42 of act. Foreign national applied for judicial review. Ap- plication dismissed. There was no merit in foreign national's contention that he was forced out of government employment by Taliban in 1996. There was ample evidence from which offi- cer could conclude that principal foreign national was in service of government until August 1997 and this finding of fact was rea- sonable. Finding that individual is or was senior member of public service of government described in s. 35(1)(b) is sufficient for find- ing of inadmissibility. Officer was not required to consider whether foreign national was complicit in Taliban regime. Officer was only required to consider whether for- eign national was senior official of that regime within meaning of s. 16 of Immigration and Refugee Protection Regulations. Officer adequately assessed whether for- eign national's service satisfied meaning of prescribed senior official. No procedural fairness arose from failure to disclose poison pen e-mail alleging that foreign national assisted Taliban as there was no indication officer relied on this e-mail in decision. Section 7 of Canadian Charter of Rights and Freedoms was not en- gaged in present case as Charter does not provide positive right to refugee protection. Unavailabili- ty of refugee protection to person facing removal to risk of harm will not violate s. 7 where other protections are available. Even if s. 7 were engaged by finding of inadmissibility, foreign nationals could seek ministerial relief from this finding pursuant to s. 42.1(1) of act. Tareen v. Canada (Minister of Citizenship and Immigra- tion) (Nov. 6, 2015, F.C., Robin Camp J., File No. IMM-309-15) 260 A.C.W.S. (3d) 563. Official Languages GENERAL Canada Revenue Agency did not violate employee's right to work in language of choice Bilingual francophone employ- ee of Canada Revenue Agency (CRA) dealt with call from an- glophone. He sent note in French to other bilingual francophone employee. Superiors required him to re-write note in English in accordance with CRA pol- icy requiring use of taxpayer's preferred language. Employee brought complaint before Of- ficial Languages Commissioner. Commissioner found CRA REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT 8JUINPSFUIBOQBHFWJFXTBOEVOJRVF WJTJUPSTNPOUIMZDBOBEJBOMBXMJTUDPNDBQUVSFTZPVSNBSLFU FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an annual Gold or Silver Enhanced listing package. ENCHANCE YOUR LISTING TODAY! CLLdir_LT_Jan18_16.indd 1 2016-01-13 12:21 PM

• Cover