Law Times

Law Times • June 19, 2017 Page 15 www.lawtimesnews.com CASELAW RPD to conclude that applicant lacked credibility and that his claim demonstrated no credible basis. Sobolli v. Canada (Minister of Citizenship and Immigra- tion) (2017), 2017 CarswellNat 651, 2017 FC 256, B. Richard Bell J. (F.C.). Tax Court of Canada Tax GOODS AND SERVICES TAX Special rules Taxpayer reassessed as no evidence of consent to act as agent of third party N, who was sole shareholder of P Inc., incorporated P Inc. to carry out renovations on ho- tel owned by numbered com- pany owned by N's friend A. In February 2011, numbered company granted power of at- torney to P Inc. and gave P Inc. power to act for numbered com- pany in all matters pertaining to hotel. A signed direction to pay authorizing disbursement of CMHC funds to P Inc. and specifying that P Inc. was ap- pointed to act for A in matters pertaining to mortgage and to manage and finish renovations. N paid renovations out of own pocket on each f loor, and, once f loor passed inspection, CMHC advanced funds which would be disbursed to P Inc. in accor- dance with direction to pay. No management agreement existed between N and A and P Inc. did not invoice A or numbered company for work. P Inc. was reassessed for net harmonized sales tax (HST) of $47,314.05 for reporting period from Janu- ary 1, 2011 to March 31, 2011. In November 2012, Minister as- sessed P Inc. in respect of mak- ing of taxable supplies, and HST collectible was $69,492, input tax credits were $25,992.07 in- terest was assessed of $3,168.17 and failure to file penalty was $1,739.98. In March 2014, Min- ister reassessed P Inc. disallow- ing input tax credits previously allowed. In 2015, Minister fur- ther reassessed P Inc.'s ITCs of $22,177.95 resulting in net tax liability of $47,314.05. P Inc. appealed as to Minister's find- ing of its net tax liability. Issue for determination was whether numbered company consented to P Inc. acting as its agent re- garding renovations. Appeal dismissed. P Inc. was not acting as agent for numbered company for renovations since numbered company did not consent, ex- plicitly or implicitly, to P Inc. acting in that capacity. Evidence did not establish that A express- ly consented to agency relation- ship with P Inc. for renovations or that it gave implicit consent to do so. Only evidence submitted with respect to renovations was that P Inc. performed functions that general contractor would normally do. P Inc. failed to show that it was acting as agent for numbered company in per- forming these functions. Persepolis Contracting Inc. v. The Queen (2017), 2017 Car- swellNat 2477, 2017 TCC 89, Syl- vain Ouimet J. (T.C.C. [Infor- mal Procedure]). Ontario Civil Cases Civil Practice and Procedure COSTS Costs of appeals Costs reserved to application judge after matter sent back for redetermination Husband applied to terminate spousal support and life insur- ance obligations on basis that he was planning to retire and sought to reduce obligations leading up to retirement date. Applica- tion judge found that husband's retirement and consequent re- duction in income was material change in circumstances, that parties' assets and income would be about equal after husband's retirement and terminated hus- band's spousal support and in- surance obligations effective on anticipated retirement date. Wife appealed and order was made directing amount of spousal support and insurance benefits to be sent back for redetermina- tion. Issue arose as to costs. Wife was awarded costs in amount of $13,000 for appeal. Wife largely prevailed on main issue, namely whether spousal support and insurance benefits should be ter- minated or reduced. That appro- priate reduction to support and insurance obligations remained open for determination by an- other application judge consti- tuted unusual circumstance sup- porting departure from general principle that successful party on appeal be granted costs. As result, costs of application were reserved to application judge. Schulstad v. Schulstad (2017), 2017 CarswellOnt 4797, 2017 ONCA 246, K.M. Weiler J.A., Paul Rouleau J.A., and L.B. Rob- erts J.A. (Ont. C.A.); additional reasons (2017), 2017 CarswellOnt 1170, 2017 ONCA 95, K.M. Wei- ler J.A., Paul Rouleau J.A., and L.B. Roberts J.A. (Ont. C.A.). Principle of proportionality meant costs on substantial indemnity basis not justified RK purchased home where MS and SS were living with April 17, 2012 closing date. Vendors AV and TV (daughter and son in law of MS and SS) agreed to give vacant possession by April 30, 2012. KK was informed by MS and SS that they had commenced proceeding before Landlord and Tenant Board. When MS and SS did not move out on April 30, KK removed their belong- ings to front lawn and side of house where they were rained upon. Trial judge found MS and SS were tenants, but, whether or not they were tenants, RK as owner and KK as person who controlled property on his be- half were bailees and awarded MS $25,000 for damage to per- sonal property. KK and RK's ap- peal was dismissed on basis that, even if trial judge erred in find- ing tenancy or in finding that acknowledgment signed by AV and TV was void, those findings did not affect fact that trial judge correctly found that KK and RK were gratuitous or involuntary bailees and as such were liable for damage caused by their gross negligence or deliberate acts. MS was awarded judgments for $33,758.96 and $3,876.33. AV and TV abandoned appeal dur- ing oral argument and AK and RK filed bald Notice of Appeal and factum with large number of arguments that were, for most part, abandoned at hearing. Hearing was held to determine costs. MS, SS, AV and TV were entitled to costs fixed at $15,000 all in, being costs at higher scale than partial indemnity but not full indemnity costs. MS made offers to settle appeal which ap- pellants conceded were as good as result. Given principle of pro- portionality, small claims court appeal involving $33,758.96 and $3,876.33 did not warrant costs award on substantial indemnity basis in amount of $21,001.05. Khachatryan v. Sookedeo (2017), 2017 CarswellOnt 3436, 2017 ONSC 1548, Swinton J. (Ont. Div. Ct.); additional rea- sons (2017), 2017 CarswellOnt 399, 2017 ONSC 194, Swinton J. (Ont. Div. Ct.). Estates and Trusts ESTATES Dependants' relief legislation Proceeds of life insurance policy for father payable to mother to extent of father's support obligations Deceased father SC was required by court order to maintain mother AC as irrevocable ben- eficiary on life insurance policy and to pay child and spousal support. Father's new partner ED applied under Succession Law Reform Act (SLRA) for de- pendants' relief. Trial judge de- termined that proceeds of policy were included in father's estate and available for dependants' claims under SLRA. Appeal judge dismissed mother's ap- peal. Mother appealed. Appeal allowed. Mother was entitled to payment of policy's proceeds to extent of father's support obliga- tions, past and future, existing at time of his death, and calculated in accordance with terms and duration of support orders in ef- fect at date of death. Policy was transaction effected by father before his death within meaning of s. 72(1) of SLRA, so proceeds were deemed to form part of his net estate. Appeal judge erred in holding that mother did not fall within s. 72(7) of SLRA unless she was secured creditor with se- curity interest in policy. Where, at time of his death, spousal or child support payor owned in- surance policy that was subject to court order requiring desig- nation of support recipient as irrevocable beneficiary, s. 72(7) of SLRA protected from claw back in s. 72(1) of SLRA that part of policy's proceeds needed to satisfy payor's obligations to support recipients, calculated in accordance with support orders in place at time of death. Full amount of policy's proceeds was not automatically excluded from claw back in s. 72(1) of SLRA. Dagg v. Cameron Es- tate (2017), 2017 CarswellOnt 6557, 2017 ONCA 366, David Doherty J.A., David Brown J.A., and B.W. Miller J.A. (Ont. C.A.); reversed (2016), 2016 Carswel- lOnt 4876, 2016 ONSC 1892, Aston J., Swinton J., and Pattillo J. (Ont. Div. Ct.). Family Law CUSTODY AND ACCESS Interim custody No order as to custody; father entitled to take children on vacation Parties married in 2012 and had two children before separating in 2016. Father paid child support based on temporary consent order. Mother interfered with father's access, citing daughter's psychological problems, infant son's nursing, and father's non- disclosure about girlfriend with 16-year-old son father was living with. Father brought for motion for joint custody or no order as to custody, seeking order set- ting out residence times for each parent, and for permission to take children to US for vacation; mother brought motion for sole custody, adjustment to tem- porary child support based on change in father's income, and for contribution to extraordinary expenses. Father's motion grant- ed; mother's motion dismissed other than order that father contribute to extraordinary ex- penses of $34 month commenc- ing March 2017. There was to be no order as to custody. Father wished to spend as much time with children as was consistent with their best interest. Mother was motivated by extraneous considerations to push father out of children's lives. Since son was drinking from cup and eat- ing solids, son was able to spend time away from mother without prejudice to his nutritional needs or interference with continued nursing. Short family vacation with father was in children's best interest. Children were to reside with parties on alternate weeks for first month and then on two- week alternate basis. Father had right to travel to US with chil- dren without mother's consent. Mother was ordered to deliver children's birth certificates to fa- ther forthwith and to sign neces- sary consents. Order followed fa- ther's timetable because that was only one offered. Adjustment to child support order made based on father's 2016 income was un- necessary where there was dif- ference of few dollars per month. Father was ordered to pay $34 to- wards daughter's pre-school tu- ition commencing March 2017. Stoklosa v. Stoklosa (2017), 2017 CarswellOnt 4689, 2017 ONSC 1697, J.A. Ramsay J. (Ont. S.C.J.). Human Rights PRACTICE AND PROCEDURE Judicial review Human rights complaint dismissed for failure to comply with procedural orders Human Rights Tribunal dis- missed applicant's complaint. This was second time that com- plaint had been dismissed. Af- ter first dismissal, applicant had sought to reinstate his complaint and tribunal had agreed to do so. Applicant had been expressly ordered to provide all material in support of his complaint within two weeks of decision, and ap- plicant had failed to do that. Applicant brought application for judicial review. Application dismissed. Applicant had twice failed to comply with procedural orders of tribunal. In interests of procedural fairness to all parties and in interests of finality, tribu- nal was entitled to decide that no further indulgences should be granted to applicant. That was reasonable decision for tribunal to take, and there was no prin- cipled basis upon which court could interfere with decision. In order to make finding of bias, grounds alleging bias must be substantial and there must be co- gent evidence to support them in order to rebut strong presump- tion of impartiality. That thresh- old had clearly not been met. Samra v. Brennestuhl (2017), 2017 CarswellOnt 3579, 2017 ONSC 1498, Sachs J., Nord- heimer J., and Gilmore J. (Ont. Div. Ct.). Ontario Criminal Cases Criminal Law SENTENCING Types of sentence Accused receiving intermittent imprisonment for sexual assault conviction Accused worked as model and then as modelling agent for de- cades. Accused was convicted of four counts of sexual assault and one count of sexual interfer- ence. Accused sexually assaulted three male complainants. Ac- cused was 46 years old and he did not have criminal record. Accused had excellent reputa- tion in modelling community but he was unable to work in his field because of charges, which ruined his reputation. Accused suffered from diabetes. Accused sentenced to 30 days' intermit- tent imprisonment, less 2 days' credit for time served and to 18-month conditional sentence. R. v. Anderson (2017), 2017 CarswellOnt 3473, 2017 ONSC 1322, McWatt J. (Ont. S.C.J.).

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