Law Times

Law Times • December 5, 2016 Page 15 www.lawtimesnews.com Act which fell under Ministry of Industry, not Health, this was too narrow of view of prevail- ing jurisprudence . Presumption of reasonableness applied when administrative decision-maker was interpreting not just its home statute, but also when decision- maker was interpreting "statutes closely connected to its function" which applied equally to regula- tions that were closely connected to function of Minister of Health. Teva Canada Ltd. v. Pfizer Canada Inc. (2016), 2016 Car- swellNat 5051, 2016 FCA 248, Eleanor R. Dawson J.A., Wyman W. Webb J.A., and Donald J. Rennie J.A. (F.C.A.); reversed (2014), 2014 CarswellNat 5409, 2014 CarswellNat 7072, 2014 FC 1243, 2014 CF 1243, Mary J.L. Gleason J. (F.C.). TAX GOODS AND SERVICES TAX Administration and enforcement Validity of tax assessments must be adjudicated by Tax Court of Canada In 2011, Minister of National Rev- enue sent notice of assessment to individual for outstanding GST. In July 2015, CRA issued require- ment to pay. In September 2015, individual claimed that he filed notice of objection. In October 2015, individual filed statement of claim under Simplified Action Rules of Federal Court seeking declaration that requirement to pay was null and void contrary to Indian Act, Treaty No. 8 and Constitution Act, and for damag - es for amounts seized pursuant to requirement to pay. Pursuant to judgment by Federal Court (FC), individual's statement of claim was ordered struck without leave to amend on basis that claim disclosed no reasonable cause of action. Individual appealed. Ap- peal dismissed. In current case, FC held that essential character of individual's claim was indirect challenge to validity of his 2011 tax reassessment. Such charac- terization did not amount to pal- pable and overriding error. Even though individual's case was cast as damage claim, only damages sought f lowed directly from tax re-assessment and sought re- imbursement of monies paid in satisfaction of that re-assessment. Individual's claim as pleaded was nothing but challenge to valid- ity of tax re-assessment. Con- stitutional dimension of claim did nothing to alter this claim or to oust Tax Court of Canada's (TCC) jurisdiction. Cases cited by individual confirmed that questions related to validity of tax assessments must be adjudicated by TCC irrespective of how claim is framed. Motions judge prop- erly characterized claim as being indirect challenge to tax assess- ment. It was plain and obvious that TCC had exclusive jurisdic- tion over question. Horseman v. Canada (2016), 2016 CarswellNat 5555, 2016 FCA 252, Gauthier J.A., Yves de Montigny J.A., and Gleason J.A. (F.C.A.). Federal Court REMEDIES INJUNCTIONS Availability of injunctions Allegations of inducement constituted serious issue Plaintiffs were TV broadcasting companies and TV broadcast distribution undertakings while defendants were vendors of TV set-top boxes with pre-loaded applications. Plaintiffs learned that defendants' devices could be used to access protected con- tent produced and/or retrans- mitted by plaintiffs using online streaming websites, and that de- fendants advertised their prod- ucts as way to access free tele- vision content and avoid cable bills. Plaintiffs brought unspeci- fied action against defendants. Plaintiffs brought motion for in- terlocutory injunction essential- ly restraining defendants from engaging in conduct harmful to plaintiffs' legitimate intellec- tual property interests. Motion granted. Plaintiffs demonstrated serious issue to be tried. Sections 2.4, 3, and 21 of Copyright Act gave plaintiffs exclusive rights to communicate their programs to public by telecommunication via television broadcast. Plaintiffs also had sole right to fix their communication signals and to reproduce any fixation thereof. Devices marketed, sold, and pro - grammed by defendants enabled consumers to obtain unauthor- ized access to content for which plaintiffs owned copyright. This was not case where defendants merely served as conduit but rather deliberately encouraged consumers and potential clients to circumvent authorized ways of accessing content. Statutory defence provided in s. 2.4(1)(b) of Act did not apply to defendants who went above and beyond selling simple "means of tele - communication". Allegations of inducement constituted seri- ous issue since defendants mar- keted themselves to consumers specifically on basis that their "plug-and-play" set-top boxes made it easy to eliminate need for cable subscription. Plaintiffs also had strong prima facie case that devices sold by defendants were used to access content that might contravene s. 9(1)(c) of Ra- diocommunication Act. Bell Canada v. 1326030 Ontario Inc. (2016), 2016 Car- swellNat 4944, 2016 Carswell- Nat 4945, 2016 FC 612, Danièle Tremblay-Lamer J. (F.C.). Ontario Civil Cases ALTERNATIVE DISPUTE RESOLUTION RELATION OF ARBITRATION TO COURT PROCEEDINGS Stay of court proceedings Arbitration clause did not exclude tort claims, misrepresentation or fraud Plaintiff was overseas resident who went into business with defendants to run restaurant. Plaintiff, who invested $200,000, entered into shareholders' agree- ment with defendants that con- tained arbitration clause. After failure of restaurant, plaintiff brought action against defen- dants. Defendants' application to stay action in favour of ar- bitration was dismissed. De- fendants appealed. Appeal al- lowed. Mandatory language of s. 7 of Arbitration Act strongly favoured giving effect to arbitra- tion agreement. Motion judge did not properly consider impact of jurisprudence's similar pro- arbitration orientation on his determinations . Plaintiff 's al- legations of misrepresentations largely related to defendants' failures to perform obligations under shareholders' agreement. Motion judge's finding that pith and substance of claims, apart from oppression claim, related to fraudulent misrepresenta- tion that induced plaintiff to enter into business agreement could not be accepted. Motion judge erred in assuming that tort claims fell outside scope of arbi- tration agreement and that fraud claim vitiated arbitration agree- ment, since neither assumption was supported by case law as au- tomatically applying principle. Arbitration clause contained broad language and did not ex- clude tort claims, misrepresen- tation or fraud. Motion judge failed to advert to policy of en- forcing arbitration agreements and letting arbitrators decide scope of their authority. Motion judge fell into error in equating forum selection clauses with ar- bitration agreements. Motion judge's conclusion that bulk of claims fell outside arbitration clause simply did not bear up under scrutiny . Motion judge erred in refusing to grant stay on ground that subject matter was beyond scope of shareholders' agreement. Haas v. Gunasekaram (2016), 2016 CarswellOnt 16116, 2016 ONCA 744, J.C. MacPher - son J.A., Janet Simmons J.A., and P. Lauwers J.A. (Ont. C.A.); re- versed (2015), 2015 CarswellOnt 12596, 2015 ONSC 5083, S.A.Q. Akhtar J. (Ont. S.C.J.). CIVIL PRACTICE AND PROCEDURE JUDGMENTS AND ORDERS Final or interlocutory Order dismissing summary judgment motion was not final order S was driving his wife's car with others, including K, as passen- gers. S stopped at store and K took over driving and got into accident, injuring S. S brought claim under "uninsured auto- mobile coverage" provisions in s. 5 of Policy, "inadequately insured motorist" provisions in Endorsement, and s. 265 of Insurance Act. Insurer brought unsuccessful motion for sum- mary judgment to dismiss S's action. Motion judge deter- mined that it was not clear that vehicle was taken by K without consent, held that s. 265(2) of Act and policy were ambigu- ous, interpreted policy and Act as meaning that vehicles owned by insured or spouse, if insured, were uninsured automobiles when taken without consent and that, if K took vehicle with- out consent, K was inadequately insured motorist under policy. Insurer appealed. Appeal dis- missed. Motion judge's order dismissing summary judgment motion was not final order. Motion judges dismissing sum- mary judgment motions were presumed to be simply explain- ing there was no genuine issue requiring trial and not making determination binding on par- ties at trial. As it was unclear whether motion judge in this case intended determination to be binding on parties at trial, ambiguity regarding consent meant motion judge's conclu- sions were not be taken as any- thing more than explanation for finding that there was genuine issue for trial. S's concession that trial judge was free to conclude that wife's automobile was not "uninsured automobile" be- cause it was owned by S's spouse was consistent with view that order was interlocutory and not final. Motion judges dismissing summary judgment motions were urged to invoke R. 20.04(4) and make clear in orders and reasons when they intended their determinations of law to be binding on parties at trial. Skunk v. Ketash (2016), 2016 CarswellOnt 17669, 2016 ONCA 841, Alexandra Hoy A.C.J.O., P. Lauwers J.A., and M.L. Benotto J.A. (Ont. C.A.). Ontario Criminal Cases CRIMINAL LAW POST-TRIAL PROCEDURE Appeal from conviction or acquittal Accused's essential argument did not qualify for leave to appeal Accused was convicted of driv- ing with excessive alcohol after she was stopped by police officer for speeding. Officer noted signs of impairment, including odour of alcohol, and accused admit- ted that she had been drinking. Accused's summary conviction appeal was dismissed. Accused argued, for first time, that her rights under ss. 9 and s. 10(b) of Canadian Charter of Rights and Freedoms had been breached. Appeal judge refused to exercise his discretion to allow argu- ments not raised at trial to be advanced at appeal level, find- ing that evidence at trial amply justified decision of trial coun- sel not to pursue any Charter remedies. Accused applied for leave to appeal. Application dis- missed. Accused's argument at trial that breath tests were not taken as soon as practicable was rejected. Appeal from summary conviction appeal must involve question of law alone. Accused's essential argument that she was treated unfairly did not qualify for leave to appeal as it did not raise question of law alone. Even if it did, circumstances were not such as to meet requirements in R. v. R. (R.). R. v. Hart (2016), 2016 Car- swellOnt 17367, 2016 ONCA 739, J.C. MacPherson J.A., Gloria Epstein J.A., and P. Lauwers J.A. (Ont. C.A.); leave to appeal re- fused (2016), 2016 CarswellOnt 3490, 2016 ONSC 1620, B.P. O'Marra J. (Ont. S.C.J.). YOUTH OFFENDERS Youth Criminal Justice Act Youth court judges are not required to give credit for pre-sentence custody Accused young person, age 17, fired volley of shots into crowd, injuring three persons. Crown applied to have accused sen- tenced as adult under s. 72(1) of Youth Criminal Justice Act (YCJA). Defence counsel op- posed Crown's application and urged sentencing judge not to give accused credit for about 15 months he spent in pre-sentence custody to buttress submission that youth sentence would be sufficient to hold accused ac- countable for his behaviour. Sen- tencing judge found that Crown had not rebutted presumption of diminished moral blame- worthiness, and that maximum sentence of three years available under YCJA would be sufficient to hold accused accountable. Sentencing judge declined to give accused credit for about 15 months of pre-sentence custody so that fit sentence ref lecting statutory principles in YCJA could be imposed. Accused appealed, submitting that sen - tencing judge erred in denying him credit for pre-trial custody. Appeal dismissed. While youth court judge must consider pre- sentence custody in sentencing, credit which will be given in particular case is discretion- ary. YCJA mandates youth sen- tencing judges to impose least restrictive sentence capable of achieving purposes in YCJA, and to impose sentence most likely to rehabilitate and reinte- grate young person into society. Requiring youth court judges to give credit for pre-sentence custody could reduce their abil- ity to meet those objectives. While parity principle applies in context of youth sentencing, R. v. Summers does not affect discretion of youth court judges to take pre-sentence custody into account in whatever man- ner judge concludes will result in sentence that will hold young person accountable. Sentencing judge did not err in acceding to defence submissions, sentenc- ing accused as young person and considering pre-sentence custody, but opting not to give credit for pre-sentence custody. R. v. B. (M.) (2016), 2016 CarswellOnt 16259, 2016 ONCA 760, J.C. MacPherson J.A., S.E. Pepall J.A., and G. Pardu J.A. (Ont. C.A.). CASELAW

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