Law Times

PAGE 22 CaseLawLaw SUPREME COURT OF CANADA Constitutional Law DISTRIBUTION OF LEGISLATIVE AUTHORITY Licence fees were, in pith and substance, regulatory charges and intra vires Minister's delegated power Court upholding findings of both Federal Court and Fed- eral Court of Appeal that annual business licence fee for right to sell alcohol beverages imposed on hotels, restaurants and bars in Jasper National Park regulatory charge and validly imposed. Fee imposed under authority granted to Minister of Canadian Heri- tage pursuant to s. 24 of Parks Canada Agency Act to "fix the fees or the manner of calculating fees in respect of products, rights or privileges provided by the [Parks Canada] Agency". Appel- lants owned hotels, restaurants and bars serving alcoholic bev- erages in Jasper National Park. They were required to pay fee in accordance with Parks Canada master List of Fees to sell alcohol. Agency's policy was to attribute revenues generated in park back to the park. Appellants objec- tion to percentage fees required on purchase of alcohol in addi- tion to base fee dismissed. Li- cence fees had characteristics of both tax and regulatory charges but were, in pith and substance, regulatory charges and intra vires Minister's delegated power. Fees tied to costs of regulatory scheme governing Park. 620 Connaught Ltd. v. Can- ada (Attorney General) (Feb. 29, 2008, S.C.C., McLach- lin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 31661) Appeal from 149 A.C.W.S. (3d) 856; 271 D.L.R. (4th) 678; 352 N.R. 177; [2007] 2 F.C.R. 446 dismissed. Order No. 008/063/002 (35 pp.). FEDERAL COURT OF APPEAL Competition Law proposed acquisition was dismissed Commissioner of Competition's appeal of Competition Tribunal Member's decision dismissing OTHER REMEDIES Appeal from dismissal of application for interim order prohibiting application for interim order prohibiting proposed acquisi- tion dismissed. Commissioner concluded further time required to complete inquiry. Commis- sioner's argument that Member applied s. 100(1)(a) of Com- petition Act (Can.), as though proposed transaction must be reasonably likely to prevent or lessen competition substantially in accordance with previous ver- sion of that provision rejected. Member correctly explained that in assessing whether condition for issuance of interim order met tribunal had to consider effec- tiveness of available remedies in absence of interim order. Court also rejecting argument that only limitation of obtaining interim order would be tribunal's resid- ual discretion to refuse order if commissioner acted in patently unreasonable manner, if commis- sioner not acting in good faith, or if application constituted abuse of process. Canada (Commissioner of Com- petition) v. Labatt Brewing Co. (Jan. 22, 2008, F.C.A., Richard C.J., Noel and Sharlow JJ.A., File No. A-192-07) Order No. 008/037/068 (9 pp.). Employment PUBLIC SERVICE Appellant not entitled to hearing prior to rejection of probation Motions judge correctly denied application for judicial review of adjudicator's decision that he did not have jurisdiction to hear appellant's grievance of his rejec- tion of probation. Appellant was not entitled to hearing prior to his rejection of probation. In any event, appellant had hearing be- fore adjudicator and hearing was conducted fairly in accordance with principles of fundamental justice. Chaudhry v. Canada (Attorney General) (Feb. 15, 2008, F.C.A., Nadon, Sexton and Ryer JJ.A., File No. A-229-07) Appeal from 157 A.C.W.S. (3d) 333 dis- missed. Order No. 008/063/150 (6 pp.). Taxation INCOME TAX Tax Court Judge correctly dis- missed appeals pertaining to each of assessments and reassessment that were in issue. Tax Court Judge correctly concluded that s. 55(2) of Income Tax Act (Can.) did not apply to proceeds of re- demption. Further, assessments of Part III tax were made within statutory time limit. Ottawa Air Cargo Centre Ltd. v. Canada (Feb. 12, 2008, F.C.A., Noel, Sharlow and Pelletier JJ.A., File No. A-240-07) Appeal from 157 A.C.W.S. (3d) 449; 2007 APRIL 28, 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. D.T.C. 661; [2007] 3 C.T.C. 2577 dismissed. Order No. 008/063/145 (4 pp.). Tax Court Judge's finding that M. had ostensible authority to sign waiver on behalf of corporate ap- pellant was amply supported by evidence. No reason to interfere with Tax Court Judge's finding that non est factum did not ap- ply. M. could not avoid conse- quences of signing waiver by not reading it, or by saying that he didn't read it. Tax Court Judge did not err in confirming Min- ister's approach to assessment of benefits received by shareholders. Matter was remitted to Minister for reassessment solely on basis that, in calculation of sharehold- er benefit received by appellant, she was to be given credit for cer- tain payments made. Arpeg Holdings Ltd. v. Canada (Jan. 24, 2008, F.C.A., Le- tourneau, Sexton and Pelle- tier JJ.A., File No. A-539-06; A-537-06; A-538-06; A-540-06; A-541-06; A-542-06; A-543-06) Appeal from 153 A.C.W.S. (3d) 239; 2007 D.T.C. 131; [2007] 1 C.T.C. 2447 was allowed in part. Order No. 008/043/006 (19 pp.). Finding of ostensible authority to sign waiver on behalf of corporation supported by evidence FEDERAL COURT Appeal Appeal arose from federal logging tax credit that did not include credit for taxes from taxable gains of appellant from sale of two saw mills and some houses. Province brought motion to intervene in appeal. Province had interest in appeal so as to minimize possible double taxation on appellant. To allow intervention was more ef- ficient. Province's intervention might render assistance to court. Province was granted status of intervener in appeal for purposes of argument. Weyerhaeuser Co. v. Canada (Jan. 17, 2008, T.C.C., Beau- bier D.J.T.C.C., File No. 2007-1055(IT)G) Order No. 008/038/060 (6 pp.). PROCEDURE Province granted leave to intervene in appeal regarding federal logging tax credit Civil Procedure CLASS ACTIONS Class action was preferable to judicial review Applicants sought judicial re- view of decision whereby Min- www.lawtimesnews.com ister charged applicant $75 for determination of application for sponsorship of wife. Applicants brought motion to have appli- cation for judicial review to be treated as action and for it to be certified as class action. Motion was allowed. Decision in Grenier v. Canada (2005), 262 D.L.R. (4th) 337, 145 A.C.W.S. (3d) 618 (F.C.A.), did not serve as bar. There was reasonable cause of action. There was class of two or more persons. Some sub-classes might have to be created. Action was preferable procedure. Appli- cants would fairly and adequately represent interests of class. There was judicial economy and access to justice was easier. Hinton v. Canada (Minister of Citizenship and Immigration) (Jan. 4, 2008, F.C., Harrington J., File No. IMM-5015-06) Or- der No. 008/024/159 (24 pp.). Customs And Excise Applicant was about to board plane. Applicant had over $100,000 in cash that applicant did not report. Officer suspected money was proceeds of crime. Money was seized and forfeited. Decision was confirmed on re- view. Application for judicial re- view was allowed. Language used in burden of proof was strict form of criminal standard of proof be- yond reasonable doubt. Burden and standard of proof imposed was too high. Approach required applicant to prove applicant's ex- planation of source of funds was only possible one. Matter was sent back to another delegate for reconsideration. Qasem v. M.N.R. (Jan. 10, 2008, F.C., O'Reilly J., File No. T-685-06) Order No. 008/024/174 (16 pp.). SEIZURE Standard of proof imposed on applicant was too high Social Welfare CANADA PENSION PLAN Commissioner's decision to extend time to appeal was quashed Commissioner of Review Tribu- nals rendered ex parte decision, pursuant to s. 82(1) of Canada Pension Plan, extending time within which respondent could appeal to Review Tribunal recon- sideration decision of Minister refusing respondent's application for disability payment under Canada Pension Plan. Commis- sioner failed to disclose adequate reasons for grant of extension of time. Failure warranted court's intervention. Further, granting of extension of time to appeal to Review Tribunal Minister's first decision was impermissible collateral attack on Minister's subsequent decision refusing to reconsider respondent's second application for disability pay- ment under Canada Pension Plan and initially denied by Min- ister, for which respondent had not sought reconsideration and where respondent did not seek judicial review. Commissioner's decision to extend time to appeal to Review Tribunal Minister's decision was quashed. Judicial review allowed. Canada (Attorney General) v. Pentney (Jan. 25, 2008, F.C., Le- mieux J., File No. T-645-06) Or- der No. 008/043/011 (36 pp.). OF CANADA Taxation TAX COURT INCOME TAX Appellant was sole shareholder of company. Appellant transferred shares to numbered company. Appellant became sole share- holder and director of numbered company. Appellant sold shares in numbered company to per- son at arm's length for one dol- lar. Minister reduced appellant's allowable business investment loss and non-capital loss. Ap- peals were dismissed. Companies were affiliated because first com- pany was wholly owned subsid- iary of numbered company. Sec- tion 40(3.6) of Income Tax Act (Can.), referred to corporation buying back own shares. Shares referred to in s. 40(3.6)(b) of In- come Tax Act were of first com- pany. Hess v. Canada (Jan. 3, 2008, T.C.C., Rip A.C.J.T.C.C., File No. 2006-1174(IT)G) Order No. 008/024/100 (6 pp.). Companies affiliated where one was wholly owned subsidiary of numbered company CIVIL CASES Administrative Law ONTARIO Board confirmed discipline of reprimand imposed on plaintiff. Plaintiff claimed disciplinary process was flawed resulting in denial of natural justice. Defen- dant breached implied contrac- tual duty to conduct disciplin- ary process in fair, open and impartial manner. Defendant's disciplinary process was fatally flawed from moment investigat- ing committee considered and voted on preliminary hearing report presented by investiga- BOARDS AND TRIBUNALS Disciplinary process was fatally flawed

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