Law Times

Law Times • June 18, 2012 misfeasance in public office and abuse of authority was struck out as lacking material facts and details. Claim for abuse of process was struck out. Claims with respect to ss. 7 and 15 of Canadian Charter of Rights and Freedoms were deficient. Sivak v. Canada (Feb. 28, 2012, F.C., Russell J., File No. T-1700- 11) 213 A.C.W.S. (3d) 30 (37 pp.). Immigration Applicant was denied perma- nent residence on humanitar- ian and compassionate ("H&C") grounds. Board noted applicant did not submit evidence to sup- port conclusion state protection was not available to applicant in country of origin. Board con- cluded applicant did not become established in Canada to extent that severing Officer erred in failing to specifically address medical evidence SELECTION AND ADMISSION to disproportionate hardship. Applicant' ties amounted vide information on hardships incurred if relationship with applicant was severed. Applicant had immediate family in coun- try of origin. Applicant suffered from diabetes. Application for judicial s partner did not pro- Officer erred in failing to spe- cifically address important med- ical evidence. Officer did not provide sufficient justification for definitive conclusion that applicant would have access to government assistance should applicant be returned to coun- try of origin and be unable to work. Finding was not reason- able. Board did not err in apply- ing appropriate test for H&C grounds. Holder v. Canada (Minister of Citizenship and Immigration) (Mar. 20, 2012, F.C., Near J., File No. IMM-5151-11) 213 A.C.W.S. (3d) 182 (13 pp.). review was allowed. TAX COURT OF CANADA Appeals by payor from deci- sion determining that work was employed in insurable employ- ment with payor within mean- ing of s. 5(1)(a) of Employment Insurance Act (Can.), and in pensionable employment within meaning of s. 6(1)(a) of Canada Pension Plan. Payor was non- governmental organization, registered as charitable organi- zation. Worker joined organiza- tion as intern, and remained in that position for approximately one year. Worker was awarded scholarship $35,000 given by Association of Universities and Colleges of Canada to cover period of internship. Worker was paid scholarship money in monthly installments by payor. At end of internship, payor obtained additional scholar- Amounts received in nature of scholarship and not remuneration Employment Insurance CONTRIBUTIONS ship in amount of $10,000 from bank in order to keep worker on for additional three months. Appeals allowed. When worker accepted funding for scholar- ship, ship between payor and her was not one of employee-employer. Amounts worker received were in nature of scholarship or financial assistance and were not remuneration for services pro- vided. Worker took no financial risk. Worker used computer and office equipment provided by payor. Atlantic Council of Canada v. M.N.R. (Jan. 9, 2012, T.C.C., D' she knew that relation- Taxation Appeal by registrant from assess- ment by Minister under Excise Tax Act (Can.). Registrant began operating motorcycle parts busi- ness as sole proprietorship in 2005. Registrant did not have proper licenses to purchase vehi- cles, so registrant' Registrant should have been able to provide more reliable documentation GOODS AND SERVICES TAX ship purchased vehicles for resale to registrant. Registrant failed to keep proper accounting records. Registrant was audited. Minister assessed registrant under Act for 2005, increasing GST collectible in respect of third quarter ("Q3") and fourth quarter ("Q4"), and denying registrant certain ITCs in respect of first quarter ("Q1") and second quarter ("Q2"). Minister conceded reductions of GST collectible in respect of Q3 and Q4. Appeal allowed in part. Assessments were referred back to Minister for reconsid- eration and reassessment on basis of Minister' s son's car dealer- and on basis that registrant was entitled to additional ITCs for 2005 of $1,137 in respect of Q1 and $453.59 in respect of Q2 and on basis that GST collectible was reduced by $355 for Q3 and by $500 for Q4. Customs form provided at hearing showed that son' s concessions cycles and paid GST at border in amount of $1,118.71. Although amounts on form did not match claim, form supported allow- ance of some ITCs in respect of transaction. Reduction in GST collectible for Q3 by $354.87 was supported by documentation provided at hearing as to US GST exempt sales. While supporting documentation was not ideal, it was sufficient to justify adjust- ment to reflect exempt $9,788.71 in US sales, which was increase of $5,423.71 from what was accept- ed by auditor. Accordingly, GST collectible was to be reduced by $355. Registrant had only self to blame for fact that no other reductions or ITCs were allowed, as registrant failed to keep proper records. Auditor correctly reject- ed some of registrant' documentation as s dealership imported motor- such as handwritten invoices, toll bridge receipts, and invoices with unreliable, s source CASELAW incorrect GST numbers or insuf- ficiently detailed descriptions of parts purchased. Registrant should have been able to provide more reliable supporting docu- mentation by linking invoices to customs documents. Registrant failed to establish that transac- tions were not properly taken into account in assessments. Kedzierski v. Canada (Mar. 15, 2012, T.C.C., Woods J., File No. 2510(GST)1) 213 A.C.W.S. (3d) 225 (8 pp.). 2010-2509(GST), Auray J., File No. 2010- 2905(EI); 2010-2933(CPP)) 213 A.C.W.S. (3d) 115 (26 pp.). ONTARIO CIVIL CASES Bankruptcy and Insolvency DISCHARGE Appeal by Superintendent of Bankruptcy from deputy regis- trar' Deputy registrar could not contra- vene statute and ignore case law absolute discharge. Bankrupt made joint filing for bankrupt- cy in 2000. Trustee determined that bankrupt were required to contribute portion of their sur- plus income to various estates for benefit of creditors in an amount of $676.62 per month for 21 months. Bankrupt did not comply with surplus income payment and had balance owing of $10,240.45. Deputy registrar granted absolute discharge to bankrupt. Appeal allowed. Order annulling absolute discharge was issued and matter was referred back to mediation for rehear- ing on merits. Given clear and unequivocal language of s. 172(2) of Bankruptcy and Insolvency Act (Can.), it was obvious that deputy s decision granting bankrupt jurisdiction in giving bankrupt absolute discharge. Review of transcripts of previous hearings confirmed that deputy registrar had very strong views about Surplus Income Guidelines, and was of opinion that they were not fair. Deputy registrar could not just proceed to contravene statute and ignore relevant case law. Dabeka (Re) (Mar. 9, 2012, Ont. S.C.J., Roy J., File No. 33-1309261/2) 213 A.C.W.S. (3d) 15 (6 pp.). Motion by plaintiffs to amend statement of claim to add pro- posed defendant and to amend location in which slip and fall occurred. While making delivery for his employer, plaintiff slipped on some ice and fell while exit- ing his truck, fracturing his left shoulder in three places and sus- taining soft tissue injuries to his neck and his left arm. Motion dismissed. Plaintiffs failed to pro- vide explanation for their failure to identify owner of property where they alleged slip and fall occurred, nor any indication of efforts made to determine own- ership of property. Plaintiff failed to meet burden of proof imposed investigation made to ascertain all liable parties No evidence of inquiries and Civil Procedure PLEADINGS www.lawtimesnews.com registrar exceeded his 2010- by s. 5(2) of Limitations Act, 2002 (Ont.). There was no evidence about inquiries and investigation, if any, that were made to ascer- tain all potential liable parties. No special circumstances existed justifying extension of limitation period. Wirring v. Buffalo Group Developments Ltd. (Mar. 9, 2012, Ont. S.C.J., Cavarzan J., File No. 09-16427) 213 A.C.W.S. (3d) 53 (12 pp.). Courts inadvertence on part of applicant Applicant JURISDICTION Indifference rather than candidate in municipal elec- tion. Applicant claimed appli- cant inadvertently failed to file financial statement setting out campaign finances by deadline. Successful candidate resigned. Applicant was precluded from being appointed or from running in by-election. Applicant did not seek extension of time to file and never filed. Application was dismissed. Applicant' was unsuccessful indicated indifference to neces- sity of complying with campaign financing rules rather than acting in good faith. There was indif- ference rather than inadvertence. Relief in s. 92(6) of Municipal Elections Act, 1996 (Ont.), was not available to applicant because failure to file was not one of offences listed in s. 92(5). "Presiding judge" referred to in s. 92(6) meant judge of Ontario Court of Justice. No authority was conferred on Superior Court by s. 92(6). There was no basis for granting relief sought by exercise of court' s conduct 98 of Courts of Justice Act (Ont.). Ecker v. Hamilton-Wentworth Catholic District School Board (Apr. s discretion pursuant to s. Cavarzan J., File No. 12-33900) 213 A.C.W.S. (3d) 109 (12 pp.). 12, 2012, Ont. Applicant was not child's bio- logical father but acted as child's Child could maintain connection to biological family through access order Family Law CUSTODY father since birth. Respondent was child' exercised access with child. Child lived with applicant since birth. Child had mixed racial heritage. Each party sought cus- tody of child. Mother was not able to parent child and sup- ported respondent' s maternal aunt. Aunt custody. Applicant was to have custody. Respondent was to have access. Child' s claim for nant psychological attachment was to applicant whom child viewed as father. It was contrary to child' s predomi- child from stable environment where child thrived. Court questioned respondent' s best interests to remove mitment to child's future given s com- length of delay incurred by respondent in moving claim for custody forward. Respondent' plan was not permanent or sta- ble. Evidence indicated respon- dent' s care of child was tempo- s S.C.J., PAGE 15 rary until mother was able to parent. Benefits of child main- taining stability of present home and strong parental bond with applicant outweighed any ben- efits that might result in return- ing child to biological family. Child could maintain connec- tion to biological family through access order. Child would be exposed to racial and cultural heritage through relationship with maternal family. There was no evidence to suggest it would be better fostered in custodi- al arrangement as opposed to access arrangement. Carley v. Abbatino (Apr. 5, 2012, Ont. C.J., O'Connell J., File No. F217/10) 213 A.C.W.S. (3d) 134 (39 pp.). ONTARIO CRIMINAL CASES Arson Accused charged with adminis- tering noxious substance, arson and attempted murder. Crown alleged that, in context of child access dispute, accused added drugs to her daughter-in-law' Accused intentionally set fire in complainant' PROOF OF OFFENCE s bedroom drinks, causing her to become impaired, and then set fire in bedroom after she put com- plainant to bed. Accused sub- mitted that it is probable and possible that complainant neg- ligently or intentionally caused fire by smoking in bed and that she then acted in concert with another person to frame accused. Accused acquitted of attempted murder but convicted of arson and administering noxious sub- stance. Diphenhydramine and benzodiazepines were found in complainant' s accused had made purchase of Nytol (which contained diphen- hydramine) in hour before visit. Benzodiazepines detected in complainant' s urine sample and mystery. Expert testified that area of origin of fire was closet in bedroom above floor level and that it was caused by intentional application of open flame to combustibles. Experts' evidence ruled out accused' s system remained origins of fire. Court found com- plainant' s theories as to corroborated by other witnesses. Court was satisfied that accused had motive to discredit com- plainant in her quest for custody and right to move and her goal to portray herself as most suit- able parent. There was no doubt that accused intended to cause bodily harm when she adminis- tered diphenhydramine to com- plainant. Accused intentionally set fire in complainant' s testimony reliable and room by applying open flame to contents of closet. Court was not satisfied that Crown had proven that accused had specific intent to cause complainant' R. v. Fournel (Mar. 8, 2012, Ont. S.C.J., Hennessy J., File No. 17167-10) 100 W.C.B. (2d) 132 (47 pp.). s death. LT s bed-

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