Law Times

Law Times • OcTOber 17, 2016 Page 13 www.lawtimesnews.com 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 REAL PROPERTY Assessor could consider use restriction in lease in determining land value In 1957, Musqueam Indian Band (band) surrendered por- tion of its reserve lands to Crown for lease to golf and country club. Lease restricted use of lands to golf and coun- try club. As of 1991, band had jurisdiction to assess prop- erty tax and band passed Musqueam Indian Band As- sessment Bylaw (bylaw) which allowed assessor to consider any restriction placed on use of land and improvements by in- terest holder of land. In 1996, band amended bylaw to permit assessor to consider any re- striction placed on use of land and improvements by band in determining value of property for taxation purposes. Leased lands had consistently been assessed under bylaw as golf and country club. In 2011, band challenged that assess- ment before board of review on basis restriction in lease had not been placed by band, as lease was between Crown and club, and that lands should be valued as residential land. Board of review stated case to British Columbia Supreme Court to resolve dispute. Brit- ish Columbia Supreme Court and British Columbia Court of Appeal held that assessor could consider use restriction in lease in assessing value of lands. Band appealed. Ap- peal dismissed. Bylaw permit- ted assessor to consider use restriction in lease between Crown and club in determin- ing value of relevant reserve lands for assessment purposes. Resolution of issue turned on interpretation of s. 26(3.2) of bylaw, entailing discerning its meaning by examining terms in context and in grammati- cal and ordinary sense, in har- mony with bylaw's schemes and objects. Grammatical and ordinary meaning of text of s. 26(3.2) of bylaw supported interpretation that only rele- vant substantive change to by- law made by 1996 amendment was to narrow range of use restrictions on which asses- sor was expressly permitted by s. 26(3.2) to take into account, from those imposed by interest holder to those imposed only by band itself. While lease was between club and Crown, and not between club and band, Crown's intervention was ne- cessitated by Indian Act which provided at material time that reserve lands could not be leased without first being surrendered to Crown. Bylaw must be read in light of statu- torily mandated Crown role in taking title to reserve lands which are to be leased. Fact of that role did not preclude find- ing that use restriction in lease was placed by band. Context in which surrender occurred and lands were demised clarified that band intended for lands to be leased to club. It was unnec- essary for band to have stipu- lated specific restriction on use since it was implicit from con- text that lands would be used as golf and country club. Given that context, use restriction in lease was placed " by the band." Musqueam Indian Band v. Musqueam Indian Band Board of Review (Sep. 9, 2016, S.C.C., McLachlin C.J.C., Cromwell J., Moldaver J., Kara- katsanis J., Wagner J., Côté J., and Brown J., 36478) Decision at 252 A.C.W.S. (3d) 639 was affirmed. 269 A.C.W.S. (3d) 402. Federal Court of Appeal Appeal RE-HEARING Motion for order reconsidering and varying appeal judgment was dismissed In action concerning patented medicines, plaintiff was award- ed damages. Defendant paid damages, satisfying its obliga- tions. Defendant appealed judg- ment of Federal Court, which was set aside, and matter was remitted for reconsideration. Defendant asked plaintiff to re- turn defendant's payment, with interest, but plaintiff refused. Defendant brought motion for order reconsidering and vary- ing appeal judgment, to add re- quirement that plaintiff return payment with interest. Motion dismissed. Rule 399 of Federal Courts Rules (Can.) did not ap- ply. What had happened was foreseeable and could have been dealt with as part of appeal. Defendant could have specifi- cally requested that if judgment were given in its favour, plaintiff should return payment with in- terest. Defendant did not do so. This was also bar to relief under R. 397(1)(b). Payment was not raised in notice of appeal, and no relief was requested on mat- ter in notice of appeal. Defen- dant did not seek leave to amend notice of appeal and offer fresh evidence. Now that judgment had been rendered, it was not possible to retroactively expand scope of appeal and then vary judgment. Defendant had op- tion of suing plaintiff for resti- tutionary recovery, and there was also fact that Federal Court would be reconsidering matter, and thus determining any en- titlement to damages. Pfizer Canada Inc. v. Teva Canada Ltd. (Sep. 2, 2016, F.C.A., David Stratas J.A., Ryer J.A., and Mary J.L. Gleason J.A., A-422-14) Decision at 267 A.C.W.S. (3d) 628 was reconsid- eration refused. 269 A.C.W.S. (3d) 413. Constitutional Law REMEDIES Claim for Charter damages was subject to two-year limitation period Appellant was assaulted and se- riously injured while he was in custody of Correctional Service Canada. Appellant brought ac- tion against respondent assert- ing it breached his rights under Canadian Charter of Rights and Freedoms by not assuring his personal safety while he was in custody. Appellant's state- ment of claim was issued more than three years after he was as- saulted. Respondent's motion for summary judgment was granted on basis that claim was statute-barred and claim was dismissed. Appellant appealed. Appeal allowed. Respondent's motion for summary judgment was dismissed. Federal Court judge was correct in conclud- ing that claim for Charter dam- ages was subject to two-year limitation period in s. 3(2)(a) of Limitation Act (B.C.). There was genuine issue for trial as to whether running of limita- tion period against appellant was suspended by operation of s. 6(4) of Act. R. v. Newman (Aug. 31, 2016, F.C.A., J.D. Denis Pel- letier J.A., Yves de Montigny J.A., and Mary J.L. Gleason J.A., A-233-15) 269 A.C.W.S. (3d) 467. Taxation GOODS AND SERVICES TAX Notice of appeal quashed by Tax Court judge Registrant carrying on busi- ness as sole proprietor was initially assessed under Ex- cise Tax Act (Can.) for three reporting periods: January 1, 2006 to December 31, 2008; January 1, 2009 to December 31, 2009; and January 1, 2010 to December 31, 2011. Registrant did not file notice of objection in relation to any of these as- sessments within time period for doing so as set out in s. 306 of Act, but he did write to Min- ister of National Revenue on June 24, 2013 to request exten- sion of time to file notice of objection. Request was granted but only for third reporting period. Returns were filed Au- gust 2013 for periods period between January 1, 2006 and December 31, 2012. Registrant was reassessed for reporting periods between January 1, 2006 and December 31, 2011 and assessed for reporting pe- riod January 1, 2012 to Decem- ber 31, 2012 in September 2013. Registrant filed notice of ap- peal to Tax Court. Tax Court judge quashed registrant's ap- peal with respect to reporting periods between January 1, 2006 and December 31, 2009 and reporting period from January 1, 2012 to December 31, 2012 because registrant did not file notice of objection for these reporting periods. Reg- istrant appealed. Appeal dis- missed. Issue on appeal was not whether registrant could appeal reassessments of those reporting periods, but rather whether he could file appeal to Tax Court in relation to other reporting periods between January 1, 2006 to December 31, 2009 and from January 1, 2012 to December 31, 2012. Following September 2013 assessments, registrant did not file any notice of objec- tion with Minister in relation to these assessments; he only CASELAW REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. 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