Law Times

PAGE 18 CaseLawLaw SUPREME COURT OF CANADA Evidence Appeal by accused from his con- viction for two counts of crimi- nal negligence causing death and one count of criminal negligence causing bodily harm. Accused and three others involved in car accident. Two occupants killed, accused and other occupant se- riously injured. Other occupant testified as Crown witness, alleged that accused was driver. Accused raised possibility of witness's mo- tive to fabricate. Trial judge ad- mitted several prior consistent statements which served to rebut that suggestion. On appeal, ac- cused submitted that trial judge erroneously considered state- ments for truth of their contents and to bolster general credibility of witness. Appeal dismissed. Pri- or consistent statements not con- sidered for truth of their content. It was not inappropriate to take into account removal of possible motive to fabricate in assessing witness's credibility. No error in finding that, because there is no evidence that individual had mo- tive to lie, their evidence is more likely to be honest. R. v. Stirling (Mar. 14, 2008, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, De- schamps, Fish, Abella, Char- ron and Rothstein JJ., File No. 31795) Appeal from 71 W.C.B. (2d) 891 dismissed. Order No. 008/077/176 (17 pp.). CREDIBILITY Not inappropriate to take into account removal of possible motive to fabricate in assessing witness's credibility FEDERAL COURT OF APPEAL Administrative Law CITT erred in inquiring into only part of complaint filed by E. regarding Public Works solici- tation. It was not open to CITT to refuse to inquire into Pub- lic Works' evaluation of E. bid, without impairing appearance of equal access of bidders, as was required by AIT and NAFTA. CITT was ordered to indepen- dently inquire into whether E.'s bid was improperly evaluated JURISDICTION CITT erred in inquiring into only part of complaint and when investigating bias, that CITT consider for and against both E. and LGS. Judicial review allowed. Systemes Equinox Inc. v. Canada (Minister of Public Works and Gov- ernment Services) (Jan. 29, 2008, F.C.A., Desjardins, Nadon and Trudel JJ.A., File No. A-128-07) Order No. 008/043/003 (18 pp.). Customs And Excise GENERAL Application judge did not err holding that Federal Court did not have jurisdiction to hear ap- plication for judicial review in view of comprehensive scheme established in ss. 58 to 68 of Cus- toms Act (Can.), which provided for adequate alternate remedy. 1099065 Ontario Inc. v. Canada (Minister of Public Safety and Emergency Preparedness) (Feb. 6, 2008, F.C.A., Letourneau, Sexton and Ryer JJ.A., File No. A-526-06) Appeal from 152 A.C.W.S. (3d) 623; 301 F.T.R. 291 dismissed. Order No. 008/063/157 (8 pp.). Taxation INCOME TAX Taxpayer did not intend to trade shares or otherwise benefit from them MAY 26, 2008 / LAW TIMES COURT DECISIONS 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: 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. Applicants were nominated to run in election. Chief Electoral Officer ("CEO") received letters on stationary of Elders referring to disgraceful and shameful con- duct of applicants. Applicants' names were to be removed from candidates list for election as band councillors. Application for judicial review was allowed. Board did not have authority to deal with issue of refusal to list person as eligible to run for of- fice. Board's decision to uphold CEO's decision was without legal force and effect. CEO's decision declaring applicants ineligible for election was made without proper authority. Such authority was not to be read into Election Code. Respondent was ordered to amend by-law to incorporate paragraph within six months of judgment. Jackson v. Piikani Nation (Feb. 1, 2008, F.C., Phelan J., File No. T-8-07; T-477-07) Order No. 008/050/108 (14 pp.). Administrative Law FREEDOM OF INFORMATION Applicant not entitled to informa- tion related to dangerous offenders Louis Vuitton Malletier S.A. v. Yang (Jan. 14, 2008, F.C., Snider J., File No. T-1236-07) Order No. 008/035/093 (11 pp.). Human Rights Legislation HUMAN RIGHTS COMMISSION Tribunal's interpretation of s. 53(2)(c) of Canadian Human Rights Act was reasonable CIVIL CASES Assessment ONTARIO INTERPRETATION No error in interpretation of "parcel" in Assessment Act (Ont.) Tax Court Judge did not err in dismissing appellant's appeal against assessments issued with respect to his 2000 and 2001 taxation years, whereby losses in- curred on disposition of 148,500 shares in 2001 were treated on capital accounts and not on in- come account. Although it was clear that appellant did intend to realize value of option by exercis- ing it and monetizing underlying shares same day, it was equally clear that he did not intend to trade shares or otherwise benefit from them as contemplated mon- etization had effect of sheltering him from any potential gain or loss arising from subsequent dis- position of those shares. Ellis v. Canada (Mar. 7, 2008, F.C.A., Noel, Nadon and Pel- letier JJ.A., File No. A-281-07) Appeal from 157 A.C.W.S. (3d) 1057; 2007 D.T.C. 996; [2007] 4 C.T.C. 2339 dismissed. Order No. 008/078/011 (5 pp.). FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Chief Electoral Officer's declaration that applicants ineligible for election made without proper authority Applicant requested names, in- stitutional/community addresses, Fingerprint System numbers and Decision Registry of Dangerous Offenders located in Ontario Re- gion. Respondents properly re- fused to exercise their discretion under Access to Information Act (Can.), to disclose information requested. Information requested by applicant constituted personal information as defined at s. 3 of Privacy Act (Can.). Judicial re- view dismissed. Yeager v. Canada (National Pa- role Board) (Jan. 29, 2008, F.C., Shore J., File No. T-1644-04) Order No. 008/043/029 (41 pp.). Civil Procedure DEFAULT Defendant found to have been personally served with claim Defendant brought motion to set aside default judgment after court found defendants were selling counterfeit merchandise through a business ("K2"). Plain- tiffs had been granted a perma- nent injunction, damages and costs. Defendant claimed she was never served with statement of claim and had no interest in K2 other than as landlord of prem- ises. Motion dismissed. On a bal- ance of probabilities defendant was personally served. Defendant lacked credibility, presented con- tradictory evidence, and her de- fence was so without merit that it was not worthy of investigation. www.lawtimesnews.com Canadian Human Rights Tribu- nal's interpretation of s. 53(2)(c) of Canadian Human Rights Act that it has jurisdiction to make compensation award of legal ex- penses was reasonable. Standard of review for Canadian Human Rights Tribunal engaged in in- terpreting its own status on ques- tion of law, was reasonableness simpliciter rather than correct- ness. Canadian Human Rights Tribunal was also under duty to provide adequate reasons for its award, which it failed to do in making compensation award for legal expenses. Award of $47,000 to respondent in legal costs was quashed. Matter was remitted to same decision maker for award of compensation for expenses with reasons, without necessity of fur- ther submissions or hearing. Ju- dicial review allowed. Canada (Attorney General) v. Mo- wat (Jan. 30, 2008, F.C., Man- damin J., File No. T-2199-06) Order No. 008/043/027 (25 pp.). OF CANADA Taxation TAX COURT INCOME TAX Existence of oral franchise agreement not established Minister disallowed appellant's claim for small business on basis appellant and B. were associated corporations and B. controlled appellant directly or indirectly. Appeal was dismissed. B. exer- cised de facto control over appel- lant. Appellant, B. and G. were not dealing at arm's length. There was no written franchise agree- ment and evidence fell short of showing existence of oral fran- chise agreement. Casting vote in unanimous shareholders agree- ment gave B. controlling influ- ence over appellant that extended beyond purpose of provision. Casting vote provision was not included in unanimous share- holders agreement in furtherance of alleged franchise agreement. Brownco Inc. v. Canada (Jan. 25, 2008, T.C.C., Paris J.T.C.C., File No. 2005-3161(IT)G) Order No. 008/043/341 (25 pp.). Municipal Property Assessment Corporation ("MPAC") brought appeal of an order of Assessment Review Board. Municipal Prop- erty Assessment Corporation ar- gued that board erred in law in its interpretation of meaning of words "parcel" in Assessment Act (Ont.), and General Regulation, O. Reg. 282/98 and in holding that two separate improved lots on a registered plan of subdivi- sion could be combined as "a single parcel" with a single roll number for purposes of Ontario regulation. Appeal dismissed. As- sessment Review Board did not err in law. Cisco Systems Co. v. Municipal Property Assessment Corp. Region No. 3 (Jan. 29, 2008, Ont. Div. Ct., Cunningham A.C.J.S.C., Browne and Ferrier JJ., File No. 07-DV-1305) Appeal from (2005), 55 O.M.B.R. 291 dis- missed. Order No. 008/035/128 (6 pp.). Civil Procedure Applicants granted extension of time to assess legal account of respondent solicitor. Applicants were dealing with serious crimi- nal charges concerning their son, including retaining another law- yer to deal with bail revocation. It was unrealistic to expect that they should seek to have bill as- sessed within time-limits set out under Solicitors Act (Ont.). Ap- plicants were not aware of re- quirement to obtain order for as- sessment within one month after delivery of bill. Account totalling $15,436 bore no reasonable re- lationship to initial estimate at commencement of retainer or to revised estimate at conclusion of bail review hearing. Applicants had demonstrated test of special circumstances had been met. Roberts v. Mok (Feb. 11, 2008, Ont.S.C.J., Wilson J., File No. 07-CV-333258) Order No. 008/045/058 (3 pp.). COSTS Extension of time to assess solicitor's account granted in special circumstances Costs award of two-and-a-half times more than amount recovered at trial would be extremely excessive Plaintiff was successful in ac- tion for disability payments. Plaintiff sought $246,908.96 costs award. Costs awarded

• Cover