Law Times

PAGE 16 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. COURT OF CANADA SUPREME Boy, aged four, suffered cata- strophic injuries when he ran onto highway and into path of oncoming school bus. Jury concluded no negligence by bus driver that caused or contrib- uted to boy' statutory right-of-way provisions Court of Appeal failed to appreciate dual function of Civil Procedure TRIAL Appeal ordered new trial, refer- ring to provisions concerning duty of pedestrians to yield right of way to vehicles and finding that trial judge improperly in- vited jury to treat boy like adult, and therefore find him responsi- ble for accident. Appeal allowed; cross-appeal s damages. Court of of Appeal failed to appreciate dual function of statutory right- of-way provisions. Although boy' dismissed. Court ruled out as matter of law due to his young age, statutory right- of-way provisions continued to inform standard of care bus driver owed to all pedestrians. Absent special circumstances, where driver has right of way, he can reasonably proceed on assumption that others will fol- low rules of road and yield right of way to drivers. Trial judge' s contributory negligence structions served only to delin- eate standard of care applicable to bus driver and did not im- properly invite jury to find boy legally responsible for accident. Nor did trial judge err in asking jury whether situation was one in which bus driver should have expected children to be present. This was further factor that had to inform jury' s in- er bus driver negligent. Marshall (Litigation Guardian of) v. Annapolis County Dis- trict School Board (June 7, 2012, S.C.C., McLachlin C.J.C., De- schamps, Abella, Rothstein, Cromwell, Moldaver and Kara- katsanis JJ., File No. 34189) De- cision at 198 A.C.W.S. (3d) 550 was reversed. 214 A.C.W.S. (3d) 796 (12 pp.). COURT OF APPEAL FEDERAL Aboriginal Peoples EXEMPTION FROM TAXATION Taxpayer, status Indian and member of Grand Rapids First Nation, lived all his life on Grand Rapids Reserve. Tax Court of Canada judge rejected taxpayer' attaching significant weight to fact that fish sold off-reserve Tax Court judge erred in ister of National Revenue erred by including in his income for 2001 and 2002 taxation years he earned from his commer- cial fishing business. Tax Court Judge concluded that impugned income not situated on reserve and not, therefore, exempt from tax under s. 87(1)(b) of Indian Act (Can.). He held that tax- payer' s submission that Min- in commercial mainstream as he caught fish off reserve, spent most working time during fish- ing season off reserve and sold entire catch to corporation, Freshwater, located off reserve. Taxpayer' s fishing activity carried on payer was member of Grand Rapids Fishermen' on-reserve institution. Co-op employs own workers to staff administrative office and pack- ing s appeal allowed. Tax- s Co-op, an s ruling on wheth- reserve. It assists fishers by pro- viding them with supplies on credit basis and acts as agent in buying and selling of fish. Co- op grades, sorts and packs fish station, both located on These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. brought by its members. Fresh- water collects fish from Co-op' on-reserve packing station and sells fish in domestic and inter- national markets. Freshwater transfers money to Co-op based on receipts issued by Co-op to fishers. Tax Court Judge erred in attaching significant weight to fact that all fish sold off-reserve. What Freshwater did with fish aſter purchasing them largely ir- relevant for determining situs of fishing business income. Judge also attached more significance to Freshwater as customer than to Co-op, the on-reserve insti- tution which played critical and pervasive role in all aspects of members' fishing businesses. Even if earned in "commercial mainstream", taxpayer' s sufficiently closely connected to reserve to be situated there for purposes of income tax exemp- tion. Ballantyne v. Canada (Mar. 20, 2012, F.C.A., Evans, Pelletier and Layden-Stevenson JJ.A., File No. A-362-09) Decision at 178 A.C.W.S. (3d) 498 was reversed. 214 A.C.W.S. (3d) 660 (8 pp.). s income Administrative Law Respondent entered Canada driving Ford Expedition mo- tor vehicle (the "goods") leased through dealership in Texas without reporting same to Ca- nadian Customs officers. Re- spondent served with notice of ascertained forfeiture on May 8, 2002, specifying that goods un- lawfully imported. Respondent requesting decision of Minis- ter on June 5, 2002 and appeal faxed to Customs Collections on June 10, 2002. Matter not brought to attention of Recourse Directorate of Canada Border Services Agency ("CBSA") until December 9, 2005. CBSA ac- knowledged receipt of appeal DUTY TO ACT FAIRLY Judge erred by setting aside otherwise reasonable decision December 13, 2005, but regis- tered letter affording respondent opportunity to provide addi- tional information returned by Canada Post and resent January 20, 2006 by regular mail. CBSA sent decision letter dismissing respondent' of employment in federal pub- lic service for seven years. Ap- pellant unsuccessfully grieved termination. Application for judicial review was denied. Ap- peal was dismissed. Appellant' 24, 2007, but decision letter re- turned by Canada Post and not resent until February 29, 2008. Federal Court Judge found that Minister failed to comply with Customs Act (Can.), to make decision "as soon as reasonably possible having regard to the circumstances", thereby breach- ing rules of procedural fairness or natural justice. Although judge found Minister' s appeal on January nation reasonable and rejected respondent' prejudiced in ability to provide additional information or docu- ments, he set aside Minister' s determi- s contention he was cision. Appeal to Federal Court of Appeal allowed. Since judge found respondent suffered no evidentiary prejudice, in order to impugn Minister' s de- was required, as matter of law, to find some significant prejudice accruing to respondent such that delay tainted proceeding or contrary to interests of justice to allow Minister' s decision he stand. Judge made no such find- ing and erred, in absence of such finding, by finding abuse of pro- cess or breach of natural justice. Judge erred by setting aside oth- erwise reasonable decision. Prue v. Canada (Minister of Pub- lic Safety and Emergency Pre- paredness) (Apr. 11, 2012, F.C.A., Sharlow, Dawson and Trudel JJ.A., File No. A-1-11) Decision at 195 A.C.W.S. (3d) 1016 was reversed. 214 A.C.W.S. (3d) 662 (20 pp.). s decision to Appeal Appellant litigated termination Public interest in finality of litigation was to prevail GROUNDS application for reconsideration by board was dismissed. Crown' motion to strike out statement of defence was allowed. Motions judge determined statement of claim was abuse of process be- cause it sought to re-litigate mat- ters already determined in other proceedings brought by appel- lant in Federal Court. Appeal was dismissed. Action could not possibly succeed. General prohi- bition on re-litigation applied to issues that were determined by tribunal and those that litigant could have raised in proceed- ing before tribunal but did not. Appellant had opportunities to litigate legal authority of warden in context of grievances. There was no basis for judge to exer- cise discretion and allow action to proceed. Public interest in fi- nality of litigation was to prevail. There was no basis for permit- ting appellant to raise issue in present action or in subsequent litigation. Law provided appel- lant with adequate opportunities to litigate warden' s s ity to terminate appellant's em- s legal author- ployment, but appellant failed to avail himself of opportuni- ties. Statement of claim was un- founded as far as it assumed ap- pellant was denied opportunity to litigate issue. Crown owed no legal duty to give legal advice or information to those litigating against it. Chaudhry v. Canada (Attorney General) (Apr. 13, 2012, F.C.A., Evans, Sharlow and Dawson JJ.A., File No. A-383-11) 214 A.C.W.S. (3d) 704 (20 pp.). Decision to exclude e-mails did not deny applicant fair hearing Employment Insurance ENTITLEMENT September 3, 2012 • Law timeS Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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