Law Times

Law Times • may 2, 2016 Page 13 www.lawtimesnews.com Supreme Court of Canada Appeal GROUNDS Trial judge's errors in assess- ment of credibility deprived accused of fair trial Accused were charged with im- porting cocaine and possessing cocaine for purpose of traffick- ing. Accused A and R were truck drivers who brought load of ice cream from California over border. Customs officials found large amount of cocaine hid - den in load. Both accused testi- fied and denied knowledge of cocaine. R testified that he left A overnight at one point in Califor- nia. Trial judge rejected evidence of both accused and referred to R's defence as alibi. Appeal from convictions dismissed. Major - ity of Court of Appeal held that trial judge mischaracterized R's defence as alibi but this error did not affect his finding of guilt. Dissenting judge held that trial judge made numerous errors in assessing R's credibility, depriv - ing him of fair trial. R appealing to Supreme Court of Canada. For reasons given by dissenting judge, appeal allowed and new trial ordered. R. v. Riar (Nov. 10, 2015, S.C.C., McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Brown J., 36449) Decision at 121 W.C.B. (2d) 555 was reversed. 128 W.C.B. (2d) 107. Constitutional Law REMEDIES Extension of declaration of invalidity was granted Court declared ss. 241(b) and 14 of Criminal Code of no force and effect to extent that they prohib- ited physician-assisted death in certain circumstances. Court granted 12-month suspension of declaration of invalidity. Attor - ney-General of Canada applied for six-month extension of dec- laration of invalidity. Extension granted for four months. Inter- ruption of legislative work due to federal election justified exten- sion. Exemptions to extension granted to Quebec at its request and individuals who apply to su- perior court for relief. Carter v. Canada (Attorney General) (Jan. 15, 2016, S.C.C., Abella J., Karakatsanis J., Wag - ner J., Gascon J., Côté J., McLach- lin C.J., Cromwell J., Moldaver J., and Brown J., 35591) 128 W.C.B. (2d) 130. Federal Court of Appeal Taxation INCOME TAX Tax Court judge erred by fail- ing to consider whether it was implicit that taxpayer was required to incur certain costs in order to earn commissions Taxpayer employee of car dealer- ship incurred various expenses to support sales, including costs relating to contact with clients and promotional expenses, as well as costs of transferring new cars to dealership to obtain higher com - mission and of installing certain accessories on certain cars sold. Taxpayer claimed expenses as deductions from employment income. Minister assessed tax - payer, disallowing such deduc- tions on basis that expenses were not "required under employment contract" as set out in s. 8(1)(f) of Income Tax Act (Can.). Taxpayer's appeal was dismissed. Taxpayer appealed. Appeal allowed in part. Tax Court judge erred in relying on employer's personal perspec - tive, without considering whether, regarding contract objectively, it was implicit that taxpayer would be required to incur certain costs in order to earn commissions contemplated by contract. Tax Court judge also erred in failing to address possibility that some expenses might be required under contract and others might not. Tax Court judge did not identify and segregate those expenses related to development and marketing of taxpayer's sales, which he was not required to incur under contract, and those which, when contract was viewed objectively, were di - rectly needed for taxpayer to sell cars and earn commissions and were expressly agreed with dealer- ship. Taxpayer's evidence showed mutual understanding that ex- penses for transporting cars to dealership and purchasing acces- sories to be included on delivery of vehicle were required. Without such expenses, taxpayer could not earn higher percentage com - mission that dealership agreed to pay him if vehicle was present in community or could not deliver merchandise that dealership had agreed to deliver to client. Assess - ment should be varied to allow deductions for costs incurred on transportation of vehicles to de- liver and to purchase accessories or enhancement where dealership was also covering part of costs and expense was charged back. Urquhart v. R. (Mar. 4, 2016, F.C.A., Johanne Gauthier J.A., Donald J. Rennie J.A., and Mary J.L. Gleason J.A., A-56-15) 263 A.C.W.S. (3d) 1082. Federal Court Planning PLANNING AUTHORITY Superintendent of national park could consider concept pro- posal that did not comply with current management plan Superintendent of Jasper National Park approved for further con- sideration in development review process concept proposal of MTL to develop 10 to 15 tent cabins un- der new license of occupation at lake subject to park management plan amendment. Applicants as- serted tent cabin element of con- cept proposal was not permissible under management plan, which prohibits release of new land for overnight commercial accom - modation outside community of Jasper. Applicants sought judicial review. Application dismissed. Applicants wished to ensure that no amendments to management plan were made that would per - mit MTL's proposal to proceed, but there was no basis to believe that such amendment would not be lawfully enacted. There was no reason why Parks Canada could not invite MTL to proceed with phase two of concept review on contingency basis set out in Superintendent's decision. For purpose of simply deciding that further consideration should be given to proposal, decision was reasonable. Applicants were seek - ing to make management plan le- gally binding documents in strict and specific sense that was at odds with purpose as general guideline that provided long-term strate - gic direction. There was nothing in management plan, legislation or any jurisprudence to support proposition that Superintendent could not consider concept pro - posal that did not comply with current management plan. Deci- sion made it clear that Superin- tendent did not approve tent cabin element of concept proposal and recognized that amendment to management plan would be re - quired. Decision was no more than consent to proceed to phase two of review process, subject to overriding consideration of amendment to management plan. Amendments to Management Plan had their own process and, as yet, there was no reason to think that any proposed amendments would not be legitimate and made in accordance with that process. There was simply no evidence o support accusations that Superin - tendent was seeking amendments to management plan to accom- modate MTL. Canadian Parks and Wil- derness Society v. Maligne Tours Ltd. (Feb. 8, 2016, F.C., James Russell J., T-1808-14) 263 A.C.W.S. (3d) 1058. Privacy Legislation GENERAL Conclusions in report of Office of Privacy Commissioner were reasonable Applicant complained that De- partment of Human Resources and Skills Development Canada (HRSDC) improperly collected personal information from her employer in connection with its Targeted Wage Subsidy Program. Office of Privacy Commissioner ("OPC") commenced formal in - vestigation and advised applicant of investigation and invited her to submit additional informa- tion, which she did. HRSDC also made submissions, including fact it was unsuccessful in finding any files pertaining to applicant, and time for file retention had expired. Individuals interviewed by investigator had no recollec - tion of events. Report concluded applicant's name, phone number and SIN were collected, and this constituted personal information under s. 3 of Privacy Act (Can.), and Department had collected information as part of its man - date, but it could not conclude whether collection was without applicant's consent given 12 years has passed and program no lon - ger existed. Application for judi- cial review of report issued. Ap- plication dismissed. OPC's op- eration as ombudsman, issuance of non-binding reports and mas- ter of own procedure militated against highly formal proceed- ings. Applicant had ample op- portunity to make submissions and did so, and there was no in- dication of bias or reasonable ap- prehension thereof. Given inves- tigators findings and numerous unsuccessful attempts to obtain information from HRSDC, the report's conclusions were reason - able and the reasons were justi- fied, transparent and intelligible. W. (E.) v. Canada (Privacy Commissioner) (Dec. 24, 2015, F.C., Alan S. Diner J., T-125-13) 263 A.C.W.S. (3d) 1062. Ontario Civil Cases Civil Procedure CASE MANAGEMENT Court could do nothing further to help self-represented plaintiff Actions had long history and arose from 2000 motor vehicle accident. Plaintiff commenced actions against defendant driver and Statutory Accident Ben - efits action against her insurer. Plaintiff had been represented by many different lawyers through- out and actions had been subject to many motions throughout years. Capacity assessment was conducted and found plaintiff capable, though psychiatric dis - orders were identified. Tentative settlement was reached but plain- tiff refused to conclude. Plain- tiff 's counsel had withdrawn and plaintiff was now self-repre- sented. Trial date was vacated to find amicus curiae, given court's concerns with plaintiff 's ability to defend herself, but plaintiff 's relationship with amicus cur - iae had also irreparably broken down. Given plaintiff 's resolve to continue self-represented, court could do nothing further to help her, so matter was to proceed to scheduling trial, and defendant's motion to dismiss for delay and plaintiff 's former lawyers' mo - tion for charging order, which had been adjourned, would also be scheduled. Huang v. Braga (Feb. 11, 2016, Ont. S.C.J., T. McEwen J., 02- CV-223298 CM3, 06-CV-316408 PD1) 263 A.C.W.S. (3d) 902. WANT OF PROSECUTION Action stayed where plaintiff took no action for two years after being granted 60-day indulgence Defendant was municipal tran- sit commission. Plaintiff fell from one of defendant's buses in March 2006. Plaintiff retained lawyer in April 2006. Claim for statutory accident benefits was settled in June 2007. In March 2008, plaintiff commenced ac - tion against defendant for dam- ages for negligence. Plaintiff al- lowed defendant to investigate before filing statement of de- fence. Defendant delivered state- ment of defence in April 2009 and also served its affidavit of documents and requested quick trial. Plaintiff had not served af - fidavit of documents by time her lawyer served notice of examina- tion in November 2010. Exami- nations did not proceed. Action was administratively dismissed for delay in August 2011. In Feb- ruary 2012, defendant consented to order setting aside dismissal and allowing plaintiff 60 days to set matter down for trial. Plain - tiff 's lawyer took no action until May 2014, and efforts to move matter forward were fruitless. Plaintiff brought motion for or - der varying deadline in consent order. Motion dismissed; action stayed. Standard that applied when seeking to set aside admin - istrative dismissal for delay was starting point for consideration in present case since indulgence had already been granted. De - lays before and after prior in- dulgence were considered sepa- rately and in totality. Significant consideration was plaintiff 's failure to complete discover- ies in eight years for very simple claim of low complexity. Plain- tiff had not even closed plead- ings since statement of claim had named unidentified driver but had never been amended after driver's identity was provided. Affidavit from plaintiff 's lawyer did not explain long periods of hibernation. Plaintiff had taken no action for two years after be - 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. CASELAW

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