Law Times

PAGE 18 pursuant to s. 72(1) of Immigra- tion and Refugee Protection Act (Can.), of Immigration Officer decision denying applicants' application for exemption, on humanitarian and compassionate grounds, to apply for permanent residence from within Canada. Applicants were South Korea. Applicants entered Canada in 2003 as students. Applicants had two Canadian- born children, aged five and two. Applicants' application for refu- gee protection was denied. Officer found that state protection was available for applicants. Applica- tion granted. Matter was remitted for redetermination by different immigration officer. Failure to submit evidence caused prejudice to applicants amounting to mis- carriage of justice. Consultant' citizens of conduct, in overlooking in his preparation of the file financial aspect of applicants' situation, amounted to incompetence. Kim v. Canada (Minister of Citi- zenship and Immigration) (June 5, 2012, F.C., Shore J., File No. IMM- 6651-11) 216 A.C.W.S. (3d) 445 (9 pp.). s Application for judicial review of decision by Minister deny- ing applicant' Officer did not give applicant chance to meet real concerns permanent residency as skilled worker. Applicant was citizen of India. Applicant had been working at school in Brampton teaching Punjabi on temporary work permit. Applicant received offer for continued employment. Immigration officer concluded that applicant did not meet required threshold of 67 points. Officer gave applicant no points for his arranged employment because she was not satisfied that his job offer was genuine. Application granted. Matter was referred back to another officer for reassessment. Applicant was treated unfairly. Officer did not give applicant chance to meet her real concerns about his application. Sekhon v. Canada (Minister of Citizenship and Immigration) (June 6, 2012, F.C., O'Reilly J., File No. IMM-4657-11) Order 216 A.C.W.S. (3d) 447 (6 pp.). s application for Taxation Application by taxpayer for judi- cial review of decision by Minister denying taxpayer' aware that interest was accruing on balance owing Taxpayer ought to have been INCOME TAX relief from interest accruing on tax debt. In June 2000, taxpayer sought to adjust his 1998 declared income by additional sum of $105,965. Amount represented unpaid loan from taxpayer' s request for business that, aſter one year, was required to be taken into personal income. Within five months, CRA reassessed taxpayer for addi- tional tax in amount of $56,987. Taxpayer acknowledged tax debt and had ongoing discussions with CRA about paying it. Taxpayer received statement of account in s 2007 claiming additional amount owing for adjustment to 1998 tax return. Minister denied taxpayer' request for relief from interest accruing on tax debt. Application dismissed. Minister' s within range of possible, accept- able outcomes. Taxpayer was not ill-informed about his tax obliga- tions. Taxpayer knew or ought to have been aware that interest was accruing on balance owing. Taxpayer knew he owed sub- stantial amount of tax for 1998 taxation year because he had ini- tiated required restatement of his income in his 2000 T-1 Adjust- ment filing. There was nothing in record which would give rise to estoppel. Evidence relied upon by taxpayer fell well short of unam- biguous commitment required to create estoppel. Taxpayer did not demonstrate any detrimental reliance or provide documentary corroboration that he had means to pay tax indebtedness in timely fashion. Mytting v. M.N.R. (Apr. 23, 2012, F.C., Barnes J., File No. T-948-11) 216 A.C.W.S. (3d) 510 (7 pp.). s decision fell Application by taxpayer Take it or leave it approach did not render offer unfair TAX COURT OF CANADA INCOME TAX extension of time to file notice of appeal. Minister reassessed taxpayer under Income Tax Act (Can.), for taxation years 2000, 2001 and 2003 to 2006, find- ing approximately $1 million in taxes owing, and applied interest and penalties. Taxpayer objected. Agent of taxpayer reached agree- ment with representative of Canada Revenue Agency ("CRA") on 2000, 2001, 2003 and 2004 taxation years, whereby tax owing was reduced by approximately $400,000. Taxpayer was con- cerned about short deadline to accept offer, and returned docu- ments to his representative stating that his signature was given under duress. Representative of tax- payer removed portion of signature mentioning duress and sent documents to representative of CRA. Taxpayer was assessed in accordance with settlement agreement. Reassessment on matters not related to settlement occurred with respect to 2001, 2003 and 2004 taxation years, with taxpayer' for CASELAW ONTARIO CIVIL CASES Minister decided to issue renew- able energy approval ("REA") to respondent for construction and operation of class 4 wind facility. Application for judicial review was dismissed. Applicant lacked standing. Applicant did not meet test for personal standing. Applicant did not show appli- cant suffered injury as result of decision distinguishable from that sustained by average citizen. Applicant did not have public interest standing. Applicant did not meet requirement that appli- cant have genuine interest in issues raised in application. Fact that favourable decision in appli- cation might assist applicant in appeal to Environmental Review Tribunal was not sufficient to create genuine interest. There was another reasonable way to bring application forward. Deci- sion was reasonable. Decision was reached in manner that was procedurally fair. There was no credible material suggesting individual was deprived of abil- ity to make views known during consultation process because of technical defects respecting notice of first meeting. Director' No evidence of representation made to applicant that archaeological assessment would be made Administrative Law JUDICIAL REVIEW decision to dispense with compli- ance was reasonable. Reasonable basis for decision was apparent from record. Any duty to give reasons was met. There was no evidence of any representation made to applicant that certain process would be followed for archaeological assessment. Preserve Mapleton Inc. v. Ontario (Director, Ministry of the Envi- ronment) (Apr. 24, 2012, Ont. S.C.J. (Div. Ct.), Cunningham A.C.J.S.C., Crane and Swinton JJ., File No. 38/12) 216 A.C.W.S. (3d) 270 (10 pp.). s made requests for adjustments to tax in areas covered by settle- ment agreement. Minister treated matter as administrative review of decision to reassess taxation, and denied adjustments. Application dismissed. Settlement agreement precluded appeal. CRA did not exert undue pressure on taxpayer and agreement was not made under duress. Terms of offer were not surprise and were close to what taxpayer expected. Take it or leave it approach did not render offer unfair. Extensions for years 2005 and 2006 were not necessary as time to appeal had not expired. Hill v. Canada (June 7, 2012, T.C.C., Paris J., File No. 2011- 3973(IT)APP) 216 A.C.W.S (3d) 504 (13 pp.). s consent. Taxpayer Applicant sought exemption from municipal taxation on grounds that property was house of refuge. Applicant' Place of refuge meant refuge where people live Assessment EXEMPTIONS was to provide rehabilitation pro- grams and to operate residential accommodation for people who suffered brain injury. Applicant was funded by Ministry of Health and Long Term Care. Ministry reimbursed applicant for prop- erty taxes. Respondent claimed top floor of property used for housing clients was house of refuge and should be exempt from taxation. Respondent argued remainder of property used for rehabilitation and other services was not house and was not house of refuge. Application was dismissed. Place of refuge meant refuge where people live. Declaration was to issue that applicant' s purpose s exemption for taxation www.lawtimesnews.com be granted in respect of fourth floor of property and any refund be paid in accordance with law. Community Head Injury Resource Service of Toronto v. Municipal Property Assessment Corp. (Apr. 16, 2012, Ont. S.C.J., O'Neil J., File No. CV-08-00368286) 216 A.C.W.S. (3d) 283 (7 pp.). Civil Procedure Statement of claim offended most basic rules governing pleadings This was motion for certification of proposed class action pursuant to s. 5 of Class Proceedings Act, 1992 (Ont.). Focus of action was drug Seroquel that was anti-psy- chotic medication approved for use in treatment of schizophre- nia and bipolar disorder. It was also used to treat anxiety, sleep disorders, depression and demen- tia-related psychosis. Plaintiffs alleged that defendants designed, developed, manufactured and sold Seroquel for approved and off-label uses and were respon- sible for health risks that drug caused. Plaintiffs alleged that Seroquel caused serious health risks, including serious injuries to liver, kidneys and pancreas, as well as other adverse effects. Plaintiffs sought to certify action on behalf of class that consisted of all persons in Canada who were prescribed and consumed Sero- quel. Statement of claim alleged negligence and failure to warn, conspiracy and waiver of tort. Motion dismissed. Pursuant to s. 5(1)(a) of Act, plaintiffs had to establish that pleadings disclosed cause of action. Pleadings were seriously deficient. It was plain and obvious that causes of action as pleaded would fail. Description of each of defendants' role was inconsistent with alleged activi- ties described in pleadings. There was disconnect between descrip- tion of defendants in pleadings and actions that plaintiffs sought to hold defendants responsible for. Inconsistencies in pleadings created confusion and lack of clarity as to which defendant did what in relation to Seroquel. Pleadings lumped defendants together as group and alleged that they were liable to class for each cause of action. It was not appropriate to lump defendants together. Statement of claim did not distinguish between differ- ent negligence claims but lumped them together. There was com- plete failure to provide particulars for each group of negligence. Defendants were entitled to know material facts that plaintiffs relied on to support each area of negligence. Pleadings were vague and lacked essential elements that were necessary for claim to survive. There was no distinc- tion drawn between approved and off-label uses. Statement of claim did not disclose sufficient material facts to sustain cause of action for negligent design. Neg- ligent design, development and testing cause of action was fatally flawed. There was complete lack of material facts regarding claim of negligent manufacture. It was CLASS ACTIONS September 17, 2012 • Law timeS plain and obvious that statement of claim did not disclose cause of action for negligent manufac- turing. Allegations of negligent distribution, marketing and sale in relation to approved uses were deficient. Statement of claim failed to provide sufficient par- ticulars regarding alleged breach of duty to warn. Plaintiffs' claim for conspiracy was also fraught with problems. It lacked clar- ity, precision and material facts necessary to support elements of conspiracy. It was plain and obvi- ous that conspiracy claim would fail. Statement of claim offended most basic rules governing plead- ings. Deficiencies were numerous and fatal. It was plain and obvious that causes of action in pleadings would fail. Plaintiffs failed to sat- isfy s. 5(1)(a) of Act and action could not be certified. There were also problems with class definition and common issues. Class action would not be fair, efficient and manageable method of advancing claim. Plaintiffs were not suitable representative plaintiffs. Martin v. Astrazeneca Pharma- ceuticals PLC (May 7, 2012, Ont. S.C.J., Horkins J., File No. 06-CV- 314632CP) 216 A.C.W.S. (3d) 294 (79 pp.). Plaintiff was disabled from employment as installer techni- cian. Disability was diagnosed as permanent. Disability insurer denied plaintiff ' Lawyer could possibly have owed duty to plaintiff SUMMARY JUDGMENT benefits. Limitation period to appeal decision expired. Defen- dant lawyer and law firm brought motion for summary judgment arguing that neither owed duty of any kind to plaintiff to advance claim for disability benefits prior to expiration of limitation period. Lawyer was never retained to initiate action for LTD benefits until aſter expiration of limitation period. Motion was dismissed. Court did not have full appre- ciation of evidence so as to be capable of disposing of matter by conclusively deciding no duty was owed to plaintiff by defendants. Lawyer was hired by union to assist in representation of plaintiff in regards to plaintiff ' s claim for LTD disability and what accommoda- tions should have been made by employer. It could not be said with certainty that lawyer' s long-term could not have extended beyond role of lawyer to union. Depend- ing on lawyer' s duty could possibly have owed duty to plaintiff to advise plaintiff of two- year limitation period or to advice plaintiff that plaintiff should engage counsel to examine issue. Connerty v. Coles (May 8, 2012, Ont. S.C.J., Maranger J., File No. CV-10-48496) 216 A.C.W.S. (3d) 342 (9 pp.). s knowledge, lawyer Plaintiffs played roulette at casino. Plaintiffs claimed dealer removed floating balls contrary to rules of play. Plaintiffs sued alleging Claim in restitution to recover bet on roulette games had no chance of success

• Cover