Law Times

Page 14 OctOber 17, 2016 • Law times www.lawtimesnews.com CASELAW filed notice of appeal to Tax Court. Therefore no notice of objection was validly filled for September 2013 assessments of reporting periods January 1, 2006 to December 31, 2009 or for reporting period from Jan- uary 1, 2012 to December 31, 2012. Since registrant did not file notice of objection in rela- tion to assessments issued Sep- tember 2013, he did not have right to file notice of appeal in relation to these assessments for reporting periods between January 1, 2006 and Decem- ber 31, 2009, and from January 1, 2012 to December 31, 2012. Concern in this matter was not that he was late in filling his notice of appeal but rather that he was premature because he did not satisf y condition prec- edent that would have entitled him to file notice of appeal. Beima v. R. (Aug. 17, 2016, F.C.A., Wyman W. Webb J.A., J.D. Denis Pelletier J.A., and Yves de Montigny J.A., A-39- 15) 269 A.C.W.S. (3d) 580. Tax Court of Canada Employment Insurance ENTITLEMENT Appeal of minister's decision regarding insurable earnings was allowed Individual was employed with company from May 25, 2014 to Oct. 26, 2014 (period in question) by oral and subse- quent written contract. While in office, individual was paid hourly and while on road he was paid f lat fee. When indi- vidual lef t, company provided record of employment indi- cating $8,606.62 as insurable earnings for period in ques- tion, based on 675.49 insurable hours. Individual alleged he worked 45 days on road at sev- eral locations, at rate of $125 per day. Individual alleged he made at least 275 hours of overtime during period in question and filed complaint with Labour Standards Com- mission for non-payment of compensation for overtime. Individual stated he was paid week ly by direct deposit, and cash for week worked beyond 40 hours; individual provided all evidence to show that em- ployment relationship broke down in October 2014 and claimed he received $3,809 in cash from company in 2014, amount which was added to his 2014 income tax return. Canada Revenue Agency found that during period in question individual was con- sidered employee, and that individual 's employment was insurable under s. 5(1)(a) of Employment Insurance Act (Can.). However, Minister of National Revenue found that individual worked 676 insur- able hours, for total of $8,607 insurable earnings. Individual appealed Minister's decision. Appeal allowed. Decision was referred to minister on basis that insurable hours worked by individual during period in question were 808, and that relevant insurable earnings amounted to $11,935. In spite of application of s. 10(5) of Insurable Earnings and Col- lection of Premiums Regula- tions (Can.) which stated that in absence of proof of hours worked or overtime in excess of regular schedule, person was deemed to have worked seven hours per day, not to ex- ceed 35 hours per week, min- ister accepted that individual worked 40 hours per week, according to company's infor- mation. This convinced court that during period in ques- tion, individual worked over- time and was paid in cash. In- dividual 's testimony was cred- ible and evidence submitted was sufficient to show num- ber of hours worked overtime. Individual was consistent in his stor y; he filed complaints with Labour Standards Com- mission and declared in his statement of income for 2014 amounts received from com- pany as cash. Cloutier c. Ministre du Revenu national (Aug. 24, 2016, T.C.C., Réal Favreau J., 2015-4377(EI)) 269 A.C.W.S. (3d) 498. Taxation INCOME TAX Receipts given by charity were inf lated Taxpayer made charitable do- nations to religious organiza- tions. Minister of National Revenue reassessed taxpayer under Income Tax Act (Can.) for 2007 and 2008 taxation years, disallowing charitable donations but later allowing certain donations Taxpayer appealed. Appeal dismissed. Evidence of taxpayer was self- serving and of doubtful nature. Court had some difficulty with taxpayer's claim that she at- tended two churches each of which required her to tithe 10 per cent of her income. Tax- payer claimed she made dona- tions with cheques but when no records of cheques could be produced for 2007, tax- payer claimed that donations were cash. Taxpayer claimed she attended new churches as she had moved and they were closer, but then claimed she did not move. Receipts given by charity were inf lated and could not be described as true receipts. Certain receipts were deficient regarding informa- tion required by s. 3501 of In- come Tax Regulations (Can.). Minister was entitled to reas- sess taxpayer beyond limita- tion period. Taxpayer made fictitious statements attribut- able to neglect, carelessness or wilful default, or committed fraud. Guobadia v. R. (Aug. 19, 2016, T.C.C. [Informal Pro- cedure], Guy Smith J., 2015- 2111(IT)I) 269 A.C.W.S. (3d) 591. Ontario Civil Cases Appeal GROUNDS Trial judge did not commit palpable and overriding error Plaintiff purchased balloon products from defendant, re- selling them to retailers includ- ing retail chain store D Inc.. Defendant entered into agree- ment to sell balloons directly to D Inc., selling several million dollars in balloons over next five years. Plaintiff claimed that it was entitled to 5 per cent commission on defen- dant's sales to D Inc., pursuant to agreement it made to intro- duce defendant to D Inc. and to assist in obtaining D Inc.'s business. Plaintiff 's action against defendant was allowed in amount of $266,725.08. Defendant appealed; Plaintiff cross-appealed with respect to trial judge's decision to award defendant costs of $5,000 for plaintiff 's unsuccessful disclo- sure motion. Appeal dismissed; cross-appeal allowed. Trial judge did not commit palpable and overriding error in find- ing that plaintiff introduced defendant to D Inc.. Plaintiff 's president could not attend meeting that he arranged be- tween defendant and D Inc., due to wife's illness, but he sent sales representative in his place. It was open to trial judge find that absence of president from first meeting with D Inc. did not undermine role that plain- tiff played in helping defendant to secure contract. Trial judge found that president provided extensive advice to defendant on how to deal with D Inc., spending hours strategizing as to defendant's program details and presentation. While trial judge considered discovery evi- dence admitted in contraven- tion of Rules of Civil Procedure (Ont.), her findings of fact did not depend on such evidence and were amply supported by evidence properly admitted. Zenex Enterprises Ltd. v. Pioneer Balloon Canada Ltd. (Jul. 26, 2016, Ont. C.A., Al- exandra Hoy A.C.J.O., David Brown J.A., and Grant Hu- scroft J.A., CA C60765) Deci- sion at 255 A.C.W.S. (3d) 613 was affirmed. Decision at 255 A.C.W.S. (3d) 611 was reversed. 269 A.C.W.S. (3d) 409. Evidence OPINION EVIDENCE Expert's opinion evidence was admissible and pertinent In response to economic cri- sis, government decided to adopt approach of attempting to reach collective agreements limiting wage increases. Fed- eral government enacted Ex- penditure Restraint Act (Can.), imposing wage increase caps. Unions representing employ- ees in federal public service applied for declarations that provisions in Act and govern- ment's conduct in collective bargaining impermissibly limited their members' free- dom of association contrary to s. 2(d) of Canadian Charter of Rights and Freedoms. Appli- cation was dismissed. Unions appealed. Appeal dismissed. Unions argued that application judge erred in accepting R's ex- pert evidence in finding that any limits on rights of federal public servants under s. 2(d) of Charter were demonstrably justified under s. 1 of Charter. Application judge concluded that R, economist who held various leadership positions in Department of Finance, had qualifications necessary to provide opinion evidence on economic crisis and govern- ment's objectives and actions. R was participant expert who formed opinions as member of leadership cadre crafting and implementing Act. As R was not hired by government to form opinions for purpose of litigation, he was not subject to R. 4.1.01 of Rules of Civil Pro- cedure (Ont.) requiring signing of Form 53. Application judge did not commit any error jus- tif ying appellate intervention in rejecting unions' partial- ity concerns. It was open to application judge to find R's opinion evidence admissible and pertinent. It was also open to application judge to reject unions' expert evidence even in absence of competing evi- dence. Unions' suggestion that governments could only de- fend constitutionality of leg- islation through assistance of hired guns rather than highly professional and qualified civil servants was remarkable and unpersuasive. Gordon v. Canada (Attor- ney General) (Aug. 16, 2016, Ont. C.A., Alexandra Hoy A.C.J.O., R.A. Blair J.A., and P. Lauwers J.A., CA C58501, C58502) 269 A.C.W.S. (3d) 466. Insurance AUTOMOBILE INSURANCE Action was not barred by s. 267.6 of Insurance Act (Ont.) Deceased driver was killed in motor vehicle accident at time when he was driving without insurance contrary to Com- pulsory Automobile Insurance Act (Ont.) (CAIA). Plaintiffs, wife and children of deceased, brought action against defen- dants, Ontario Ministry of Transportation (province) and its principal contractor B Ltd., for negligent design or non- repair of highway. Defendants brought motion for summary judgment to determine wheth- er or not action was barred by s. 267.6 of Insurance Act (Ont.) (IA). Motion granted. Section 267.6 of IA did not apply and action may proceed. Court of Appeal, in taverner's liability case, interpreted s. 267.6 of IA to mean that driver operat- ing vehicle in breach of CAIA cannot recover against tortfea- sor whose liability arises from operation of automobile, but that claim will not be barred against tortfeasor whose li- ability is for another form of negligence that happens to in- clude circumstances in which motorist is injured or killed. On basis of reasoning in Court of Appeal case, it was conclud- ed that s. 267.6 of IA did not limit right of plaintiffs in this case to sue for damages arising from breach of province's obli- gations in respect of highway. Province's duty to keep high- ways in good repair and to ad- here to appropriate standards of design did not arise from operation of automobile and was not limited to motorists. Any damages f lowing from fault on part of province will not be paid out of pool of auto- mobile insurance protected by s. 267.6 of IA. Contractor was in same position as province. Pulcine v. Bot Construc- tion (Ontario) Ltd. (Jul. 8, 2016, Ont. S.C.J., Calum MacLeod J., 12-55295) 269 A.C.W.S. (3d) 547. Municipal Law ACTIONS AGAINST MUNICIPALITY Invalidity of bylaw could not be equated with negligence for bylaw enforcement In 1994, City passed new bylaw regulating mobile signs (1994 Bylaw) pursuant to which all class of mobile signs required a permit and those leasing mo- bile signs had to be licensed. Appellants operated busi- nesses that leased mobile signs for advertisement purposes. They were subject to 1994 By- law when they began to lease signs. City passed "2002 By- law" which came into effect May 1, 2002 and replaced 1994 sign Bylaw. Appellants ad- vised City they took the posi- tion that 2002 Bylaw did not apply to their signs but City disagreed and indicated that enforcement officers had been instructed to proceed with en- forcement against everyone on May 1, 2002. Appellants com- menced lawsuit against City alleging that 1994 Bylaw ex- pired in January 2001 and any mobile sign in place as of May 1, 2002 was lawfully in place and not subject to 2002 Bylaw. In May, June and July 2002, of- ficials removed mobile signs belonging to appellants. Ap- pellants claimed that some 20 signs were not on City property but removed remaining signs to avoid confiscation. Appel- lants obtained order declaring that 1994 Bylaw expired as of Jan. 20, 2001. As a result, ap- pellants' signs were lawfully in place at time 2002 Bylaw came into effect and Municipal Act, 2001 (Ont.) dictated that 2002 Bylaw did not apply to those signs. Appellants alleged that City acted negligently in wrongfully enforcing 2002 Bylaw against them and, in do- ing so, caused them millions of dollars in damage. Trial judge found that 2002 Bylaw did not

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