Law Times

Law Times • apriL 3, 2017 Page 13 www.lawtimesnews.com CASELAW Supreme Court of Canada Criminal Law TRIAL PROCEDURE Charging jury or self–instruction Re-examination of law was not warranted Accused, who fathered child of complainant's daughter and had acrimonious custody battle, was charged with arson and mis- chief with respect to complain- ant's garage being set on fire and trees in his orchard destroyed. Trial judge considered evidence that, when contacted by police, accused disclaimed any inter- est in arson investigation and claimed to have spent week- end in another province when cell phone evidence indicated he was in town, as establishing accused had lied to police. Ac- cused was convicted of arson and mischief. Accused unsuc- cessfully appealed with majority finding that it was open to trial judge to draw inference that ac- cused knew what had happened on complainant's property when he spoke to police, that his alibi was deliberate lie and deliberate lie could be relied upon as some evidence of guilt. Accused ap- pealed. Appeal dismissed. Ap- peal was dismissed substantially for majority reasons in appeal decision. Re-examination of law was not warranted, particularly where neither party had asked to depart from jurisprudence. R. v. Clifford (2017), 2017 CarswellBC 436, 2017 Car- swellBC 437, 2017 SCC 9, 2017 CSC 9, Abella J., Moldaver J., Karakatsanis J., Wagner J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2016), 2016 Car- swellBC 2150, 2016 BCCA 336, Newbury J.A., Willcock J.A., and Fenlon J.A. (B.C. C.A.). Federal Court of Appeal Human Rights PRACTICE AND PROCEDURE Commissions, tribunals and boards of inquiry Commission had discretion to refuse to investigate complaint Applicant was immigration of- ficer for Citizenship and Im- migration Canada. Applicant alleged he was discriminated against as part of selection and hiring process for job position. Applicant sent letter to Human Rights Commission, informing it that he wanted to file com- plaint of discrimination against his employer. Commission de- cided not to rule on complaint because complaint was inadmis- sible under s. 41(1)(e) of Cana- dian Human Rights Act as com- plaint was filed after one-year expiration period. Applicant's application for judicial review was dismissed. Judge concluded Commission had discretion to refuse to investigate complaint and that decision was not unrea- sonable. Judge found there was no breach of procedural fairness in limiting applicant to 10 pages in order to make his written submissions. Judge found that procedure established by Com- mission did not constitute vio- lation of applicant's freedom of expression. Applicant appealed. Appeal dismissed. Judge did not make any reviewable error by adopting and applying stan- dard of reasonableness to Com- mission's decision and dismiss- ing complaint under Act, and standard of correctness on issue of procedural fairness. Even if Commission would have taken May 25, 2012 as date of last dis- criminatory event, filing of complain on July 9, 2013 would have nevertheless been outside permitted period. Commission did not commit any breach of procedural fairness in applying its procedure of limiting written submissions to 10 pages. Com- mission did not err in conclud- ing applicant did not submit suf- ficient evidence to establish that his mental state prevented him from filing his complaint within prescribed time limit. Jean Pierre c. Canada (Ci- toyenneté et Immigration) (2017), 2017 CarswellNat 252, 2017 CAF 26, A.F. Scott J.A., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.); af- firmed (2015), 2015 CarswellNat 10840, 2015 CarswellNat 7384, 2015 FC 1423, 2015 CF 1423, Denis Gascon J. (F.C.). Tax INCOME TAX Administration and enforcement It was not unjust to order taxpayer to pay security for costs Security for costs. Taxpayer was resident outside of Canada and appealed assessment. Minister of National Revenue brought motion for order requiring tax- payer to pay security for costs. Tax Court judge granted mo- tion and ordered taxpayer to pay $9,000 as security for costs without providing separate rea- sons. Taxpayer appealed. Appeal allowed. Order was set aside, Minister's motion was granted, and taxpayer was ordered to pay $13,850 as security for costs. Reasons fell short of standard. Examining order in light of re- cord, basis for order could not be discerned. Matter was consid- ered de novo. Since taxpayer did not reside in Canada, it would be difficult for Minister to en- force any costs award it might receive. Evidence offered by tax- payer concerning his financial condition was too narrow and general to be given much weight, so Minister was entitled to order requiring taxpayer to provide security for costs. Minister's es- timates for discoveries and hear- ings were reasonable. It was not unjust to order taxpayer to pay $13,850 as security for costs in three installments, even though taxpayer ended up in worse po- sition after his appeal. Mathias v. R. (2017), 2017 CarswellNat 377, 2017 FCA 19, David Stratas J.A., Webb J.A., and Scott J.A. (F.C.A.). Federal Court Evidence EXAMINATION OF WITNESSES Rebuttal Recalling expert witness to testify amounted to case-splitting Plaintiffs' expert witness L sup- plied report and testimony on effect of use of lake as reservoir for hydroelectric generation and water control purposes on First Nation. Crown provided report from expert witness R. After R was qualified as expert, Crown sought to have additional documents entered as exhibits. Plaintiffs objected on grounds documents did not form part of R's report. R was permitted to testify on additional documents. At conclusion of R's testimony, plaintiffs renewed objection to additional documents and indi- cated wish to recall L to testify. Plaintiffs were directed to have L prepare supplementary report outlining evidence to be ten- dered. Plaintiffs brought motion for order permitting recall of L as witness. Motion dismissed. Recalling L to testify amounted to case-splitting. L's proposed testimony addressed matters not currently in evidence or ad- dressed matters L had every op- portunity to address in initial reports or oral evidence. Alleged inaccuracies in data presented by R or in additional documents could be addressed by counsel. Certain proposed corrections were irrelevant and unnecessary. R's report was delivered years ago and L previously responded to it. Lac Seul Band of Indians v. Canada (2017), 2017 Carswell- Nat 213, 2017 FC 75, Russel W. Zinn J. (F.C.). Conflict of Laws FAMILY LAW Support Ontario court did not have jurisdiction to determine corollary relief following valid foreign divorce order After brief marriage in which Canadian husband lived in Canada while wife remained in China where their daughter was born, wife applied in Ontario for divorce and corollary relief. Husband's divorce application in China led to stay of wife's ap- plication. Chinese family court granted divorce and awarded wife custody of daughter but, due to husband's failure to dis- close properties and income in Canada, directed parties to ap- ply in Canada for determina- tion of support and equalization of net family property. Stay on wife's application was lifted and, at preliminary jurisdictional hearing, trial judge ruled that Ontario court had jurisdiction to award child support, spousal support and equalization under Divorce Act (DA) and under Family Law Act (FLA). Hus- band appealed. Appeal allowed in part. Ontario court had juris- diction under FLA to determine child support and equalization of net family property. Ontario court did not have jurisdiction under DA to hear and determine 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-3 1 2017-03-28 1:17 PM

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