Law Times

Page 14 March 13, 2017 • Law TiMes www.lawtimesnews.com CASELAW Supreme Court of Canada Criminal Law OFFENCES Sexual assault Evidence of two experts was subjected to materially different levels of scrutiny Accused was convicted of sexual assault. Majority of appellate court concluded that there was no basis for overturning ac- cused's conviction. Accused ap- pealed. Appeal allowed. Because new trial had to be ordered, court did not need to finally decide whether impugned evi- dence of Crown's DNA expert as to source of complainant's DNA, found on accused's penis, was or was not admissible. Assuming impugned evidence of Crown's DNA expert was admissible, it was challenged by defence DNA expert as being specula- tive, and without any scientific foundation. On its face, there was no way of telling whether it was speculative, scientific or somewhere in between, and de- fence counsel did not explore this in cross-examination. Even though neither Crown nor de- fence counsel referred to im- pugned evidence in their closing addresses, trial judge accepted it at face value, without subjecting it to any scrutiny, and used it as important piece of evidence in finding accused guilty. At same time, trial judge subjected testi- mony of defence DNA expert to intense scrutiny. Materially dif- ferent levels of scrutiny to which evidence of two experts was sub- jected was unwarranted, and it tended to shift burden of proof onto accused. Given importance that trial judge placed on im- pugned evidence in finding ac- cused guilty, it could not be said that verdict would necessarily have been same had she not done so. Conviction was quashed, and new trial was ordered. R. v. Awer (2017), 2017 Car- swellAlta 47, 2017 CarswellAlta 48, 2017 SCC 2, 2017 CSC 2, Moldaver J., Karakatsanis J., Wagner J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellAlta 827, 2016 ABCA 128, Ronald Berger J.A., Jack Watson J.A., and Frederica Schutz J.A. (Alta. C.A.). Federal Court of Appeal Administrative Law DISCRETION OF TRIBUNAL UNDER REVIEW General principles Tribunal used improper section of law to dismiss procedural fairness complaint Appellant T was complainant to public service tribunal, claiming she had been subject to repri- sal from respondent employer Crown. Tribunal determined that they had no authority to deal with complaint. T claimed that standards of review used were improper. T also claimed that her procedural fairness rights were violated, as applicable sec- tion of law was not used by tribu- nal. T applied for judicial review of tribunal decision. Application was dismissed. T appealed from dismissal of application. Appeal allowed. Tribunal used improper section of law to dismiss proce- dural fairness complaint. Com- missioner of tribunal did not dis- close that this section was being considered to dismiss complaint. T was misinformed, and could not have known case she had to meet. Matter was referred back to tribunal, to be determined in accordance with reasons of re- viewing court. Therrien v. Canada (Attor- ney General) (2017), 2017 Car- swellNat 61, 2017 FCA 14, Scott J.A., Boivin J.A., and Mary J.L. Gleason J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 10847, 2015 CarswellNat 7151, 2015 FC 1351, 2015 CF 1351, B. Richard Bell J. (F.C.). Tax INCOME TAX Losses Taxpayer's losses were denied in their entirety Taxpayer L-M deducted against his employment income of $70,000 to $80,000 aggregate business and rental losses of $52,748 for 2006, $61,625 for 2007, and $67,768 for 2008. L-M claimed significant losses from arrangement with P Ltd.. Tax- payer L reported small amount of business income and deducted business losses from purported business carried on in common with L-M, being $3,846 in 2006, $336 in 2007, and $11,188 in 2008. Taxpayers reported losses as 80/20 partners in partner- ship that was distributor for MA business. Minister reassessed taxpayers to deny losses in their entirety. Tax Court judge dis- missed taxpayers' appeals. Judge found that losses claimed with respect to P Ltd. were not sub- stantiated. L-M appealed. Ap- peal dismissed. Judge did not misunderstand issue that was before her. Net effect of judge's decision would be same regard- less of whether it was determined that L-M did not have source of business or property income in relation to P Ltd. or MA activity or that expenses in dispute were not incurred by him for purpose of gaining income from busi- ness or property, with result that revenue for each activity would be equal to expenses allowed for each activity. Judge did not make any error by focusing on issue of whether L-M had substantiated amounts claimed as losses. Judge did not err in finding that L-M had not substantiated that he had incurred amounts as expenses for purpose of gaining income from business or property. Judge did not err in determining that L-M's testimony was so vague and conf licting as to be unreli- able except to extent it was sup- ported by other evidence. Lubega-Matovu v. R. (2016), 2016 CarswellNat 7427, 2016 FCA 315, Eleanor R. Dawson J.A., Wyman W. Webb J.A., and Richard Boivin J.A. (F.C.A.); affirmed (2015), 2015 Carswell- Nat 2214, 2015 TCC 147, Judith M. Woods J. (T.C.C. [Informal Procedure]). Federal Court Immigration and Citizenship ADMISSION Temporary entry (visitors) It was not understandably clear why visa officer denied study permit Applicant previously studied in Canada and was honour student at college. Same college had ac- cepted applicant's application for resumption of his studies. Ap- plicant applied for study permit pursuant to s. 11(1) of Immigra- tion and Refugee Protection Act, which was denied by visa officer based on overall unreasonable- ness of applicant's plan of studies, strong personal ties to Canada, and previous immigration his- tory. Applicant applied for judi- cial review. Application granted. Applicant provided evidence of establishment of his parents in Greece. Applicant's family re- sided in Greece, his ties there re- mained strong, and only former friends were living in Canada. Applicant's study plans encom- passed logical trajectory for study permit. It was not understand- ably clear why visa officer denied study permit, and without more specific clarification, officer's de- cision was not reasonable. Tsaraosi v. Canada (Minis- ter of Citizenship and Immi- gration) (2017), 2017 Carswell- Nat 55, 2017 FC 59, Michel M.J. Shore J. (F.C.). Ontario Civil Cases Conflict of Laws ENFORCEMENT OF FOREIGN JUDGMENTS Defences Foreign judgments are not exempt from limitation period under Limitations Act (Ont.) Plaintiff obtained judgment in United States against defendant, and defendant's appeal was dis- missed. Plaintiff 's application in Ontario to enforce foreign judgment was granted, with dis- missal of defendant's defence arguing that limitation period commenced from date of first- instance judgment and not from dismissal of appeal. Defendant appealed. Appeal dismissed. Class of claims subject to no limi- tation period under s. 16 of Limi- tations Act, including in s. 16(1)(b) of Act to enforce order of court, did not include to proceeding on foreign judgment. Debt obliga- tion created by foreign judgment could not be directly enforced as proceeding within province had to be brought first. Term "order of court" referred to order of do- mestic court, which could only be obtained if underlying cause of action was not time-barred whereas proceeding underlying foreign judgment had not passed any Ontario limitations hurdle. Other claims grouped together in s. 16 of Act were those considered so important that would be no 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 2017-03-07 2:07 PM

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