Law Times

PAGE 18 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. FEDERAL COURT Financial Institutions GENERAL Appeal by bank from decision of Commissioner of Financial Con- sumer Agency of Canada finding bank had contravened Cost of Borrowing (Banks) Regulations (Can.), and imposing administra- tive penalty. Agency had been cre- ated pursuant to Financial Con- sumer Agency of Canada Act. Bank was subject to jurisdiction of agency. Regulations were passed to require financial institutions to in- clude information disclosure box- es in their disclosure documenta- tion for lending products. Agency sent letter to financial institutions indicating they could self-report their compliance and that agency would work with banks that self- reported non-compliance. Bank represented that it was compliant but it was not. Deputy Commis- sioner issued notice of violation to bank indicating reasonable grounds to believe bank had failed to utilize compliant information disclosure boxes. Bank made sub- missions. Commissioner found contravention of Regulations and imposed administrative penalty in amount of $12,500. Appeal dis- missed. Bank failed to establish reviewable errors. Letter from agency had not contained any commitment, either explicit or implicit, upon which bank could claim expectation of opportunity to remedy deficiencies prior to issuance of notice of violation. Quite to contrary, agency had fol- lowed process it had committed to follow. Bank had knowledge of case it had to meet and had been given full opportunity to respond to that case. Agency had not mis- construed requirements in regula- tions. Strict reading of regulations was more consistent with overrid- disclosure failed to comply Bank's information ing purpose of Act and Regula- tions. It was clear and undisputed that bank' boxes had failed to comply with Regulations in number of ways. Commissioner had not erred in her application of defence of due diligence. Steps taken by bank had not amounted to all reasonable steps to avoid non-compliance. Commissioner had not erred in finding some harm arising from bank' s information disclosure ceived benefit of complete and ac- curate disclosure. Commissioner had properly considered relevant factors when determining penalty. Mega International Commercial Bank (Canada) v. Canada (Attor- ney General) (Apr. 11, 2012, F.C., de Montigny J., File No. T-459- 11) 215 A.C.W.S. (3d) 179 (34 pp.). s customers having not re- Immigration Application by refugee claimant for judicial review of decision that she and her children were neither Convention Refugees nor persons in need of protection. Refugee claimant was citizen of Mexico. Refugee claimant' Board failed to properly analyze children's situation with respect to state protection availability REFUGEE STATUS ed to become abusive aſter birth of first child. Three years and four months s husband start- filed for divorce and was granted sole custody of first child. Hus- band located refugee claimant and first child about one month later, forced them back home, and abused refugee claimant. Refugee claimant fled to Canada, met boyfriend, and became preg- nant with second child. Refugee claimant returned to Mexico at her parents' request. Husband as- saulted refugee claimant but was only required to pay fine. Refu- gee claimant gave birth to second child in Mexico. Refugee claim- ant fled with children to Canada aſter husband threatened her and later, refugee claimant These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. second child. Boyfriend abused refugee claimant and was at risk of being deported to Mexico. Refugee claimant unsuccessfully applied for refugee protection. Board found refugee claimant was not credible in certain respects and that state protection in Mex- ico was adequate. Application granted. Board' was reasonable but board erred in determining state protection was available to children in Mexico. Board had failed to properly ana- lyze children' s credibility finding spect to availability of state protec- tion in Mexico. Domestic violence was frequent in Mexico. Board should have conducted separate analysis of children' s situation with re- Each child's fear was distinct and s situation. relied on different factual bases and circumstances that should have been assessed. It was not suf- ficient to merely rely on review of existing measures with respect to changes of address or existence of organizations to help victims of domestic violence. Evidence ad- duced with respect to situation of each child should have triggered separate analyses of risk, ability of Mexican state to protect children, and whether children could rea- sonably access such protection. Country conditions should have been contextualized in respect of each child' Cruz v. Canada (Minister of Citi- zenship and Immigration) (May 30, 2012, F.C., Scott J., File No. IMM-6527-11) 215 A.C.W.S. (3d) 189 (18 pp.). s respective situation. TAX COURT OF CANADA Employment Insurance Appeal by taxpayer from assess- ment for unpaid 2008 Employ- ment Insurance premiums and Canada Pension Plan contri- between deference and control CONTRIBUTIONS Distinction to be drawn butions with respect to worker. Taxpayer' ing and evaluating persons for potential learning disabilities. In 2008, taxpayer' s business involved test- gaged post-graduate educational assessment student ("worker") under written independent con- sultant contract as educational as- sessor. Aſter co-owner screened test subjects, worker adminis- tered tests at taxpayer' s co-owner en- before scoring tests, discussing results with co-owner, and agree- ing upon diagnosis. Worker then prepared draſt report based on co-owner' s premises nal version of which was signed by co-owner. Appeal allowed. Worker was independent con- tractor and not employee. Con- trol factor supported worker' s and own input, fi- status as independent contrac- tor. Taxpayer had only limited control over manner in which work was done. Reports given to clients were joint work product of two professionals, co-owner and worker. Assessors knew they were represented as joint authors of reports and had pro- fessional responsibility to ensure that they agreed with evaluation, so it would conflict with worker' s professional responsibilities as assessor to consider worker to be under taxpayer' s this worker was in learning phase and deferred to co-owner' ions, worker still had professional responsibility as assessor, and dis- tinction was to be drawn between deference and control. Despite worker' for preparing reports that she was under co-owner' these were merely suggestions, and co-owner did not dictate how reports were to be written. Fact that reports had to be pre- pared at taxpayer' s belief due to suggestions s control, from fact that reports were confi- dential and had to be written on computers with enhanced secu- rity features. Loose work arrange- ment and assessors' ability to ac- cept or decline work assignments s premises arose s control. While s opin- and to work elsewhere strongly supported worker' dependent contractor. Taxpayer provided all tools but that was not important factor. Assessors had some control over profit, but neither chance of profit nor risk of loss were significant factors. Worker' s status as in- knowledge that there would be no source deductions suggested worker knew she was entering into independent consultant re- lationship and was not employ- ee. While taxpayer should have given worker better explanation of status, parties' intentions sup- ported that this was independent contractor relationship. Worldwide School Search and Re- location Services Inc. v. M.N.R. (Apr. 26, 2012, T.C.C., Woods J., File No. 2011-593(CPP); 2011- 597(EI)) 215 A.C.W.S. (3d) 243 (8 pp.). s signing of contract and COURT OF CANADA SUPREME Land and property owned by federal Crown exempt from pro- vincial and municipal taxation by virtue of s. 125 of Constitu- tion Act, 1867. To compensate municipalities for loss of revenue, Payments in Lieu of Taxes Act (Can.), authorized Minister of Public Works and Government Services to make payments in lieu of taxes that would have been paid to municipality if federal property had been taxable. Act did not create legal right to pay- ments in lieu. Payments under Act were ex gratia. Respondent municipality applied to Federal Court to set aside Minister' demands that Minister's opinion be informed by tax system Fairness to municipalities Administrative Law JUDICIAL REVIEW culation of payments in lieu in s cal- September 10, 2012 • Law timeS Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

• Cover