Law Times

Page 14 June 27, 2016 • Law Times www.lawtimesnews.com Supreme Court of Canada Appeal GROUNDS Miscarriage of justice did not take place Accused appealed convictions as co-conspirator in extortion plot raising ineffective assistance of trial counsel. Trial counsel being subject to disciplinary proceedings but permitted by law society to continue with pending criminal trial. Accused rece ived independent legal ad- vice and confirmed choice of trial counsel and trial judge dis- missed Crown application to re- move counsel. Accused refused to waive privilege over trial file and independent legal advice for purpose of appeal. Trial counsel had failed to object to admission of document purportedly hand- written by accused or to assert spousal privilege over evidence. Accused asserted on appeal that trial counsel had been ineffec- tive. Appeal from convictions dismissed. Further appeal to Supreme Court of Canada dis- missed. No miscarriage of jus- tice in any form took place in this case. R. v. Meer (Jan. 21, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., 36448) Decision at 123 W.C.B. (2d) 106 was af- firmed. 129 W.C.B. (2d) 205. Drug Offences TRAFFICKING Convictions entered for traf- ficking in cocaine Accused were members of biker gang providing protection to cocaine trafficking organiza- tion. Trial judge convicted ac- cused of conspiracy to traffic in cocaine in association with criminal organization but ac- quitted accused of trafficking. Trial judge held no evidence ac- cused's activities aided or abet- ted actual trafficking activities. Crown's appeal allowed and convictions for trafficking in cocaine entered. Further appeal to Supreme Court of Canada dismissed. Trial judge erred in law by failing to conclude on facts as found that accused li- able for trafficking as aiders and abettors. Accused's acts of pro- viding protection assisted and encouraged actual trafficking activity. R. v. Knapczyk (March 22, 2016, S.C.C., McLachlin C.J.C., Abella J., Moldaver J., Karakat- sanis J., Gascon J., Côté J., and Brown J., 36612, 36613) Decision at 124 W.C.B. (2d) 487 was af- firmed. 129 W.C.B. (2d) 254. Trial REASONS FOR JUDGMENT No errors in trial judge's reason- ing process and conclusions Accused charged with man- slaughter. Deceased was lured to meeting in park and shot. Ac- cused alleged to have supplied gun to shooter and told him to shoot deceased in leg. Crown relied on evidence of alleged ac- complice. Trial judge found that accomplice's evidence could not be relied on absent independent confirmatory evidence. Trial judge considered and rejected 19 pieces of confirmatory evidence relied on by Crown. Majority of Court of Appeal allowed Crown appeal and held that trial judge erred by considered potential confirmatory evidence piece- meal and not as whole. Appeal to Supreme Court of Canada al- lowed and acquittal restored. Tri- al judge's reasoning process and conclusions ref lected no error. R. v. Seruhungo (Jan. 15, 2016, S.C.C., Moldaver J., Kara- katsanis J., Wagner J., Gascon J., and Côté J., 36523) Decision at 123 W.C.B. (2d) 306 was re- versed. 129 W.C.B. (2d) 301. Federal Court of Appeal Taxation INCOME TAX No ground to interfere with reasoning of Federal Court judge or result reached Taxpayer applied for relief un- der s. 152(4.2) of Income Tax Act (Can.), alleging that he was United States resident until June 2001 such that he was not liable for Canadian tax in 2000 taxa- tion year and also that he was entitled to claim rental expenses for taxation years 2000, 2001, and 2002. Much of evidence relevant to these allegations had been sought from taxpayer sev- eral years earlier during audit, when taxpayer did not supply enough evidence to satisfy Min- ister on these points. Taxpayer's application, submitted without any supporting documents, was denied. Taxpayer's application for second-level relief, supported by some documents, was denied. Minister's delegate concluded that minimal evidence submit- ted was insufficient to establish claim for relief and that applica- tion was attempt to circumvent normal objection and appeals process. Taxpayer's applica- tion for judicial review was dis- missed. Taxpayer appealed. Ap- peal dismissed. Federal Court judge found that Minister's fact- based discretionary decision was acceptable and defensible on applicable law and on evidence submitted. Federal Court judge also rejected submission that Minister improperly fettered discretion by use of non-binding policy statement. Taxpayer did not establish that there was any ground to interfere with reason- ing of Federal Court judge or re- sult reached. Ford v. Canada (Attorney General) (Apr. 26, 2016, F.C.A., Dawson J.A., David Stratas J.A., and Near J.A., A-441-15) Deci- sion at 256 A.C.W.S. (3d) 987 was affirmed. 265 A.C.W.S. (3d) 812. Federal Court Administrative Law JURISDICTION Request to set aside non-binding finding of Privacy Commissioner not justiciable matter Protocol was developed by RCMP and Department of Jus- tice (DOJ) establishing process by which personal medical in- formation of RCMP members could be disclosed to DOJ under s. 8(2)(d) of Privacy Act (Can.) for use in legal proceedings in- volving Crown. RCMP had been self-insured and therefore acquired much more personal medical information about members and their families than would otherwise be case. RCMP member was concerned about privacy implications of protocol and made complaint to Privacy Commissioner. Privacy Com- missioner found that as long as two criteria found in Act were met, RCMP was authorized to disclose personal information without consent. RCMP mem- ber brought application for judi- cial review of Privacy Commis- sioner's decision. Application dismissed. RCMP member's request to set aside non-binding finding of Privacy Commission- er was not justiciable matter. Un- der s. 18(1)(a) of Federal Courts Act (Can.), court had exclusive jurisdiction to grant declaratory relief against any federal board, commission or other tribunal. There was no question that Pri- vacy Commissioner exercised powers under federal legislation and was therefore federal board or commission. There was no trouble in holding that finding was act or proceeding under s. 18.1(3)(b). Finding did not rise to level of triggering legal rights en- abling RCMP member to bring application for judicial review. Proposition of RCMP member that he was entitled to standing because he was party by virtue of his initiating complaint to Pri- vacy Commissioner was not ac- cepted. Had there been justicia- ble issue, RCMP member would have had standing to bring appli- cation as he was directly affected by finding as complainant. Sauve v. Canada (Attorney General) (Apr. 11, 2016, F.C., E. Susan Elliott J., T-2584-14) 265 A.C.W.S. (3d) 556. International Law SOVEREIGN IMMUNITY Presumptive immunity for foreign states from jurisdic- tion of Canadian courts under State Immunity Act (Can.) Creditor obtained arbitral award against State of Eritrea, with respect to contract for sale of military equipment. Cana- dian company S Corp. operated mine in state in joint venture with Australian company that it wanted to buy out. On ex parte motion, creditor registered arbi- tral award, exceeding $4 million at that point, in court for pur- poses of enforcement. Pursuant to state's regulatory conditions, S Corp. through Eritrean branch office entered into joint venture with state through its alter ego E Co. to operate mine through joint venture mining company A Co. of which S Corp. owned 60 per cent while E Co. held re- maining 40 per cent. On ex parte motion, creditor obtained pro- visional order of garnishment against S Corp. to garnish "debts" of exploration licence fees paid to states and of shares A Co. issued to E Co.. Creditor's motion for fi- nal order of garnishment against S Corp. was granted. S Corp. ap- pealed. Appeal allowed. There was presumptive immunity for foreign states from jurisdiction of Canadian courts under State Immunity Act (Can.). Only pay- ments that were properly cat- egorized as payments related to commercial activity could be seized. Exploration licence fees were exempt from seizure be- cause they were quintessentially regulatory obligations imposed by sovereign state on those who carry on business within its reach, such that they did not re- late to "commercial activity" for purposes of Act. State imposed licence requirement for purpose of asserting national control over businesses such as mining activi- ties within its territory and fees were inextricably bound up with licences themselves. Licence fees also raised taxes for use by state's government. Sunridge Gold Corp. v. Del- izia Ltd. (Apr. 8, 2016, F.C., Henry S. Brown J., T-1157-13) De- cision at 248 A.C.W.S. (3d) 98 was reversed. 265 A.C.W.S. (3d) 645. Torts PASSING OFF Competitor established trademark infringement but not passing off Trademark owner owned "Mis- ter Transmission" trademark in association with transmission services for vehicles. Owner op- erated through franchise with 65 locations across Canada, includ- ing about 45 in Ontario. Com- petitor started operating trans- mission shop in relatively small city in Ontario in 2010. Both of competitor's principals had worked in one of owner's fran- chises. Competitor used trade names "Master Transmission" and "Master Transmission & Driveline". Owner had franchise in that city and was occasion- ally mistaken for competitor. Owner brought action against competitor for relief for trade- mark infringement and passing off and issue of liability pro- ceeded to trial. Action allowed on other grounds. Competitor established trademark infringe- ment but not passing off. Owner had not adduced sufficient evi- dence as to any depreciation of goodwill and actual or potential damage to owner. There was no evidence that owner had lost control over its reputation, im- age, or goodwill. There was no evidence of any loss of business by owner. There was no evidence that competitor actually used any of owner's trademarks. Responsive Brands Inc. v. 2248003 Ontario Inc. (Mar. 30, 2016, F.C., Keith M. Boswell J., T-64-11) 265 A.C.W.S. (3d) 747. Tax Court of Canada Taxation INCOME TAX Facts did not support allega- tions of fraud on court Taxpayer was lawyer at litigation counsel until mid-2007. Tax- payer's initial appeal was part of appeals involving 25 to 30 tax- payers represented by litigation counsel, and concerned taxpay- er's 2005-07 taxation years re- garding deductibility of certain capital cost allowance in respect of purchased software licence. Taxpayer was reassessed in 2009 and his claimed capital cost al- lowance was disallowed; appeals were filed shortly after. For three years taxpayer had no commu- nication with litigation counsel silent period, which ended when taxpayer received email from litigation counsel advising ini- tial appeal was settled. Taxpayer sought to set aside minutes of settlement and prevent filing of notice of discontinuance (rescis- sion period). Following receipt of advice by court that appeal was discontinued, taxpayer filed supplementary appeal. Taxpayer brought motion to set aside no- tice of discontinuance and to reinstate initial appeal; minister brought motion to dismiss ap- peals and that supplementary 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.

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