Law Times

Law Times • January 9, 2017 Page 13 www.lawtimesnews.com CASELAW Supreme Court of Canada Criminal Law PRE-TRIAL PROCEDURE Search without warrant Totality of circumstances supported conclusion that arrest was lawful Officer observed accused's ve- hicle speeding and pulled him over. Officer saw police scan- ner above driver's-side window visor and noticed that body of vehicle was higher than usual. When asked for his license and registration, accused checked his window visor and advised that he could not locate them. Officer requested that he check glove box, and while accused was leaning over saw money accused appeared to have been sitting on and unsheathed hunting knife next to driver-side door. Accused was arrested for possession of weapon dangerous to public peace and pat down search re- vealed bag of cocaine. Later strip search revealed more small bags of cocaine. voir dire was held on admissibility of evidence under section 8 and section 9 of the Canadian Charter of Rights and Freedoms. Evidence was admis- sible and accused was convicted of possession of cocaine for the purposes of trafficking and pos- session of a weapon dangerous to the public peace. Accused unsuc- cessfully appealed to Newfound- land and Labrador Court of Ap- peal, which found that arrest was lawful. Accused appealed. Ap- peal dismissed. Arrest was lawful since arresting officer had rea- sonable and probable grounds to believe that accused had com- mitted indictable offence. Totali- ty of the circumstances, not mere presence of knife, supported trial judge's conclusion that arrest was lawful. R. v. Diamond (2016), 2016 CarswellNf ld 422, 2016 Car- swellNf ld 423, 2016 SCC 46, Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellNf ld 518, 2015 NLCA 60, B.G. Welsh J.A., M.F. Har- rington J.A., and C.W. White J.A. (N.L. C.A.). Federal Court of Appeal Labour and Employment Law LABOUR LAW Discipline and termination Employer's application for judicial review was dismissed Employer dismissed worker for committing violent act in work- place. Worker's grievance for wrongful dismissal was granted and dismissal was annulled. Worker's misconduct merited severe penalty but employer failed to account for worker's medical state and as such, em- ployer's behaviour constituted discriminatory act. Employer brought application for judicial review. Application dismissed. Commissioner did not break rules of procedural fairness. Commissioner did not err in concluding there was provo- cation. Even if commissioner could not take into account "some provocation", decision was based on other mitigating factors supported by evidence on record. Given discrimina- tion, commissioner did not err in concluding that ground of discrimination needed not be only factor in dismissal; that grounds of discrimination sim- ply needed to be one factor. Evidence showed that employer was well aware of worker's health condition. Decision of commis- sioner did not establish that em- ployer could not terminate em- ployee who committed violent acts; rather decision of commis- sioner showed that termination of employee could not be taken without consideration of offend- ing employee's health status. Canada (Procureur général) c. Rahmani (2016), 2016 Car- swellNat 5330, 2016 CAF 249, Gauthier J.A., Boivin J.A., and Yves de Montigny J.A. (F.C.A.); application for judicial review refused (2016), 2016 Carswell- Nat 460, 2016 CarswellNat 461, 2016 PSLREB 10, 2016 CRTEFP 10, Marie-Claire Perrault Mem- ber (Can. P.S.L.R.E.B.). Tax INCOME TAX Administration and enforcement Court held that taxpayers had been grossly negligent Taxpayers were husband and wife, respectively retired drafts- person and employed adminis- trative assistant, who went to R for tax preparation. Taxpayers met R, who was not affiliated with any established tax prepar- ers, in coffee shop rather than professional office and he only charged $45 per return. R con- vinced taxpayers to make chari- table donations through pro- gram with inf lated gift receipts and to participate in investment program, in two taxation years. CRA challenged results of such participation. Taxpayers filed income tax returns for year in question, claiming business in- come, expenses, and losses and requesting loss carryback. Min- ister reassessed taxpayers under Income Tax Act, disallowing claimed business losses and ap- plying gross negligence penal- ties. Taxpayers' appeal with re- spect to imposition of penalties was dismissed. Tax Court judge concluded that taxpayers were not so lacking in education or experience as to claim igno- rance and that warning signs about R's professional status and his questionable prior dealing of schemes attracting CRA at- tention should have motivated them to inquire further. Taxpay- ers appealed. Appeal dismissed. Taxpayers did not demonstrate any error in Tax Court judge's analysis of governing legal principles and appreciation of evidence. There was ample evi- dentiary foundation to support Tax Court judge's conclusion of gross negligence. Tax Court judge concluded that taxpayers made no effort to verify accu- racy and completeness of their returns, simply signing their re- turns without even examining them in circumstances where they should have been on notice that something was amiss. Tax Court judge concluded that, had taxpayers made most minimal effort, they would have easily noticed utterly false information contained in their returns. Con- clusion that taxpayers had been grossly negligent could not be disturbed. Maynard v. R. (2016), 2016 CarswellNat 5331, 2016 FCA 251, Donald J. Rennie J.A., Nadon J.A., and Stratas J.A. (F.C.A.); af- firmed (2016), 2016 CarswellNat 214, 2016 TCC 21, Rommel G. Masse D.J. (T.C.C.). Ontario Civil Cases Conflict of Laws TORTS Choice of law The court held that Ontario did not have jurisdiction simpliciter Motion judge stayed plaintiffs' action against defendant on basis that it had no real and substantial connection to Ontario. Plain- tiffs appealed. Appeal dismissed. None of presumptive factors set out in certain case law was sat- isfied on facts of case. Motion judge found that defendant was Alberta corporation, resident or domiciled in Alberta, and that accident giving rise to action oc- curred when plaintiff GC was staying at hotel while he worked temporarily in Alberta. These findings were open to motion judge on record before him, and they were fatal to claim that On- tario had jurisdiction simplic- iter. There was no basis to pierce corporate veil, or to create new presumptive factor, simply be- cause there was evidence that one of directors of corporation appeared to have resided in On- tario for period of time. Neces- sity argument was made because limitation period for bringing action in Alberta had expired, and plaintiffs would be unable to bring their action if they were not permitted to do so in Ontario. Forum of necessity doctrine was exception to real and substantial connection test, and operated only in extraordinary and excep- tional circumstances. This was not appropriate case for exercise of court's discretion. Plaintiffs made tactical decision not to bring their action in Alberta, and it would not be appropriate to relieve them of consequences of that decision. Effect was not given to plaintiffs' argument that they were prejudiced by failure of defendant to provide them with information necessary for their defence of motion. Cook v. 1293037 Alberta Ltd. (2016), 2016 CarswellOnt 17394, 2016 ONCA 836, R.A. Blair J.A., Gloria Epstein J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 19523, 2015 ONSC 7989, Mulligan J. (Ont. S.C.J.). 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 WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. 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. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an Enhanced listing. ENCHANCE YOUR LISTING TODAY! Untitled-4 1 2017-01-03 3:12 PM

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