Law Times

Law Times • may 30, 2016 Page 13 www.lawtimesnews.com caselaw 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. Supreme Court of Canada Aboriginal Peoples STATUS Metis and non-status Indians are "Indians" under s. 91(24) of Constitution Act, 1867 Plaintiffs sought three declara- tions: that Metis and non-status Indians are "Indians" under s. 91(24) of Constitution Act, 1867 (Can.), that federal Crown owes fiduciary duty to Metis and non- status Indians and that Metis and non-status Indians have right to be consulted and negoti - ated with respecting their rights, interests and needs as Aboriginal peoples. Trial judge concluded "Indians" was broad term refer - ring to all Indigenous peoples but declined to grant second and third declarations. Federal Court of Appeal accepted that "Indi - ans" included all Indigenous peoples but narrowed scope to exclude non-status Indians and include only Metis who satisfied criteria from R. v. Powley, [2003] 230 D.L.R. (4th) 1, 125 A.C.W.S. (3d) 1 (S.C.C.). Federal Court of Appeal declined to grant second and third declarations. Appel - lants appealed. Crown cross- appealed but conceded that non-status Indians are "Indians" under s. 91(24). Appeal allowed in part. Declaration can only be granted if it will have practical utility i.e. will settle "live con - troversy" between parties. There was no doubt first declaration met this test. Neither level of government acknowledged con - stitutional responsibility over Metis and non-status Indians. Declaration would guarantee certainty and accountability. Metis and non-status Indians are "Indians" under s. 91(24) by vir - tue of fact they are all Aboriginal peoples. "Indians" historically used as general term referring to all Indigenous peoples, includ - ing mixed-ancestry communi- ties like Metis. Federal govern- ment has at times assumed it could legislate over Metis as "In- dians." Section 35 of Constitu- tion Act, 1982 (Can.) states that Indian, Inuit and Metis peoples are Aboriginal peoples for pur- poses of Constitution. Sections 35 and 91(24) should be read together. Jurisprudence demon- strates that intermarriage and mixed-ancestry do not preclude groups from inclusion under s. 91(24). Group of distinct people with unique identity and history whose members self-identify as separate from Indians not barred from inclusion within s. 91(24). Whether particular individuals or communities are non-status Indians or Metis and therefore "Indians" is question of fact to be decided on case-by-case basis. No reason for presumptively and arbitrarily excluding certain Me - tis from Parliament's protective authority based on Powley cri- teria which was developed pur- suant to s. 35, which serves very different constitutional purpose from s. 91(24). First declaration granted. Second and third dec - larations lacked practical utility because they were restatements of settled law. Daniels v. Canada (Min - ister of Indian Affairs and Northern Development) (Apr. 14, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J., 35945) Decision at 239 A.C.W.S. (3d) 545 was reversed. 264 A.C.W.S. (3d) 552. Infanticide GENERAL Parliament intended concept of " disturbed" mind to be broad and f lexible legal standard Accused charged with two counts of second degree mur- der. Accused admitted giving birth to two babies and aban- doning them in dumpsters. Ex- pert witnesses gave conf licting opinions on whether accused's mind was "disturbed" at time of offences. Trial judge had reason - able doubt that accused's mind was disturbed and so found her guilty of lesser included offence of infanticide. Majority of Court of Appeal upheld acquittals for murder. Appeal dismissed. Par - liament intended concept of "disturbed" mind to be broad and f lexible legal standard. De- fence was not required to show causal link between disturbance and commission of offences. Tri- al judge did not err in his analysis of issue. R. v. Borowiec (Mar. 24, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Brown J., 36585) Decision at 123 W.C.B. (2d) 351 was affirmed. 128 W.C.B. (2d) 487. Federal Court of Appeal Taxation INCOME TAX Challenge to amount of tax pay- able must proceed by way of appeal from assessment or reas- sessment to Tax Court of Canada CRA reassessed taxpayer's 2007 taxation year on basis that taxpayer's reported capital gain relating to sale of proper - ties made by partnership was business income Reassessment stated that taxpayer's share of profit was $1,898,828.00, al- lowed reserve was $919,978.00, and taxpayer's share of partner- ship income after taking into ac- count reserve was $978,850.00. CRA's confirmation of reas- sessment stated that taxpayer's share of "profit" was $978,850. Taxpayer requested CRA use profit of $978,850 as stated in confirmation of reassessment, but CRA informed taxpayer that his share of partnership income was as assessed in original reas - sessment. Taxpayer's application for judicial review of that deci- sion was dismissed. Trial judge found issue was concerned with manner of how CRA collected taxpayer's 2007 income tax. Trial judge found Federal Court had jurisdiction over collection matters. Trial judge found tax - payer conceded that CRA's use of word "profit" in confirmation notice was error by CRA. Trial judge found CRA's error was not fatal. Trial judge found purpose of notice of confirmation was to confirm findings from original reassessment Error of using term "profit" instead of proper term of "income" was not substantial as to deprive meaning of letter or invite severe misinterpreta - tion. Trial judge found CRA did not err in law in informing tax- payer that his share of partner- ship's income was as assessed in original reassessment. Taxpayer appealed. Appeal dismissed. Any challenge to amount of tax payable must proceed by way of appeal from assessment or reas - sessment to Tax Court of Cana- da. Appeal constituted collateral attack on reassessment. Argu- ment that notice of confirmation provided legally correct basis of liability for income tax and that Minister's collection activity was limited to amount owing when assessment was given effect did not succeed. Karam v. Canada (Attorney General) (Mar. 15, 2016, F.C.A., J.D. Denis Pelletier J.A., Dawson J.A., and Gauthier J.A., A-271-15) Decision at 252 A.C.W.S. (3d) 366 was affirmed. 264 A.C.W.S. (3d) 809. Not unreasonable for minister to issue revocation proposal to charitable organization Minister of National Revenue proposed to revoke charity's reg- istration as charitable organiza- tion within meaning of s. 149.1(1) of Income Tax Act (Can.) on grounds that it failed to devote all its resources to charitable activi - ties, made gifts to non-qualified donees, provided undue benefits to fundraisers, failed to maintain adequate books and records, and failed to file information return. Charity appealed. Appeal dis - missed. Court had jurisdiction to hear appeal. Minister did not violate common law of proce- dural fairness and natural jus- tice, and did not fail to respond to charity's notice of objection with all due dispatch. Grounds in revocation proposal had been addressed in compliance agree - ment previously entered into by charity. It was not unreasonable for minister to issue revocation proposal on grounds that char - ity failed to keep adequate books and records, and gave undue benefits. It was not unreason- able for minister to issue revoca- tion proposal on ground charity failed to file information return as required by act. Charity did not meet requirement to file in - formation return as required by act when it simply filed return by deadline, as inaccuracies were not minor. Charity's bare asser - tions were insufficient to dem- onstrate that it was unreasonable for minister to issue revocation proposal on ground that char- ity made gifts to unqualified donee. It was not unreasonable for minister to issue revocation proposal on ground that charity did not devote all its resources to charitable purposes. Minister calculated that only 1 per cent of funds raised by charity was deployed to charitable activities, and that 70 per cent of revenues were expended on fundraising. It did not matter that fundrais - ers who received amounts were disabled. Opportunities for the Dis- abled Foundation v. Minister of National Revenue (Mar. 24, 2016, F.C.A., Ryer J.A., Near J.A., and Boivin J.A., A-230-15) 264 A.C.W.S. (3d) 810. Ontario Civil Cases Appeal FRESH EVIDENCE Fresh evidence did not meet test for admissibility Father loaned $38,550 to his son. Loan was secured by mort- gage on son's home. Many years later, son's former spouse sought to sell home to satisfy equaliza- tion payment owing from their divorce. Son's former spouse sought declaration that mort- gage in favour of father was not binding on her and was not en- cumbrance on property. Appli- cation judge concluded that any claim by father on mortgage was statute-barred and that mort- gage was not encumbrance or charge on property. Father ap- pealed. Appeal dismissed. Fresh evidence father sought to rely on did not meet test for admis- sibility. Evidence could have been adduced at trial. There was interim order in application requiring father to produce his lawyer's file. Explanation that documents were not produced due to administrative oversight was not acceptable explanation, particularly in face of disclo - sure order. Documents did not satisfy criteria in s. 23(1) of Real Property Limitations Act (Ont.) therefore there was no reason to conclude that evidence could reasonably have been expected to have affected result. Father's own conduct disentitled him from claiming equitable remedy. Application judge found that fa - ther had acted in concert with his son to negatively impact son's former spouse and to frustrate her legitimate right to realize her equalization payment. Stetler v. Stetler (Mar. 17, 2016, Ont. C.A., G.R. Strathy C.J.O., P. Lauwers J.A., and M.L. Benotto J.A., CA C60610) Deci - sion at 253 A.C.W.S. (3d) 949 was affirmed. 264 A.C.W.S. (3d) 557. Communications Law TELEPHONES Motion judge correctly held that prepaid wireless phone card expired at end of last day of active period Bell Mobility's top-ups al- low customers to add credit to prepaid wireless phone card ac- counts to extend active period in which to access Bell's wireless network. Bell's practice was to claim unused funds the day after end of active period. Appellant's certified class action alleged Bell collected those funds improp - erly because contract provided Bell had to wait until second day after end of active period and, in alternative, that Ontario gift card regulations forbid imposition of expiry dates on prepaid phone cards. Motion judge granted summary judgment, answering common issues in Bell's favour, and dismissed class action. He held gift card regulation did not apply and ruled Bell did not breach its contract. He held Bell intended, and subscribers un - derstood, that agreement would expire at end of relevant active period and unused funds would be claimed by Bell after that time unless account topped up before expiry. He noted that informa - tion on prepaid cards and PIN receipts used to activate top ups was consistent with language of subscriber agreements, with brand brochures and pamphlets and with information on Bell's websites. Appellant appealed, arguing motion judge failed to consider prepaid wireless con - tract as whole and in finding gift card regulation inapplicable. Appeal dismissed. Motion judge correctly held that card expired at end of last day of active period. Bell intended, and subscrib -

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