Law Times

Law Times • JuLy 24, 2017 Page 13 www.lawtimesnews.com FOCUS Federal Court of Appeal Contracts CONSTRUCTION AND INTERPRETATION General principles Testimony clearly in breach of parol evidence rule Plaintiff entered into fixed price agreement with defendant sup- pliers to govern its purchase of bunkers on "time to time" basis. Plaintiff placed two spot orders with supplier for supply of bun- kers to vessels, for which supplier made arrangements with third party M Ltd. for physical deliv- ery of bunkers. Supplier invoiced plaintiff while M Ltd. invoiced supplier. After suppliers declared bankruptcy, both M Ltd. and suppliers' receivers requested payment from plaintiff. In action by plaintiff and shipowners seek- ing determination as to which entity should be paid, motions by M Ltd. and receivers for sum- mary judgment led to ruling that plaintiff pay M Ltd. its invoiced amount and pay receivers small amount equal to supplier's mark up. Receivers appealed. Appeal allowed. Motion judge erred in accepting evidence from plain- tiff 's representative that suppliers had orally agreed to accept plain- tiff 's position in agreement nego- tiations that terms and conditions of schedule 3 of agreement would apply to all purchases including spot purchases. Representative's testimony was clearly in breach of parol evidence rule and was not supported by any documentary evidence. Representative's evi- dence did not fall within rubric of surrounding circumstances and, in its absence, motion judge would necessarily have conclud- ed that suppliers' general terms and conditions would have ap- plied pursuant to agreement and to supplier's order confirmations. Motion judge erred in law by fail- ing to apply relevant principles of contractual interpretation. Mo- tion judge did not turn his mind to supplier's general terms and conditions which differed from one found in schedule 3 by re- quiring insistence of third party for its terms and conditions to replace supplier's. Motion judge made no finding whether M Ltd. insisted that plaintiff be bound by its terms and conditions. There were other differences between clauses that might be material. Matter would be returned to mo- tion judge for reconsideration in light of these reasons. ING Bank N.V. v. Canpotex Shipping Services Ltd. (2017), 2017 CarswellNat 697, 2017 FCA 47, M. Nadon J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 4741, 2015 CarswellNat 9601, 2015 FC 1108, 2015 CF 1108, Russell J. (F.C.). Tax INCOME TAX Administration and enforcement Taxpayer's motion to have settlement agreement declared invalid was dismissed Settlement. Taxpayer appealed from Minister's reassessments under Income Tax Act. Settle- ment negotiations occurred be- tween Minister and taxpayer's counsel. Counsel sent email to taxpayer setting out Minister's latest counter-offer, to which taxpayer responded "accepted ok". Taxpayer's counsel signed out-of-court settlement docu- ment and Notice of Discon- tinuance on his behalf. Notice of Discontinuance was to be held in trust until Minister is- sued reassessments ref lecting settlement. Reassessments were issued in line with settlement. Taxpayer took position that No- tice of Discontinuance could not be filed since he had never given his counsel mandate to settle and that he still wanted his day in court. Counsel with- drew from acting for taxpayer. Taxpayer's motion to have settle- ment agreement set aside and declared invalid was dismissed, Minister's motion to enforce settlement was granted, and ap- peals were quashed. Taxpayer appealed. Appeal dismissed. Tax Court Judge did not commit any legal error or any palpable and overriding error in her analy- sis of governing legal principles and appreciation of evidence given terms of agreement and counsel's authority to sign set- tlement documents. Email sent by counsel outlined settlement reached and all modifications which she was able to negotiate on his behalf. Modifications so described were accepted with- out any form of ambiguity by taxpayer's responding email. By sending this email, taxpayer conferred express mandate on counsel to execute agreement on his behalf. Counsel, as counsel of record, was entitled to provide "consent in writing" referred to in s. 169(3) of Act for purposes of executing settlement agree- ment. No fault could be found with Tax Court judge's conclu- sions as to agreement's validity and enforceability of Minister's reassessments. Granofsky v. Canada (2017), 2017 CarswellNat 2562, 2017 FCA 119, Noël C.J., A.F. Scott J.A., and Boivin J.A. (F.C.A.); af- firmed (2016), 2016 CarswellNat 3783, 2016 CarswellNat 5269, 2016 TCC 181, 2016 CCI 181, Jo- hanne D'Auray J. (T.C.C. [Gen- eral Procedure]). TCC not breaching procedural fairness by refusing to grant adjournment In filing his 2005 and 2006 income tax returns, taxpayer reported business losses in amounts of $426,511.40 and $84,329.89 respectively. He filed request for loss carryback with his 2005 return and sought and received funds in aggregate amount in excess of $140,000.00 for 2002 to 2006 taxation years. In upholding disallowance of business losses, Tax Court of Canada (TCC) found that tax- payer led no evidence of car- rying on any type of business whatsoever nor of incurring any business expenses. Taxpayer ad- mitted before TCC that he con- ducted no business in 2005 and 2006. TCC also found that Min- ister had established, on balance of probabilities, that taxpayer was wilfully blind in placing his trust in unscrupulous tax pre- parer. TCC dismissed as having no merit taxpayer's constitution- al argument based on s. 15(1) of Canadian Charter of Rights and Freedoms. Taxpayer appealed on basis that TCC failed to properly consider his constitutional ar- guments despite fact that his af- fidavit evidence which was read into record as his testimony was uncontradicted, and that TCC breached principles of procedur- al fairness in dismissing his re- quest for adjournment. Taxpayer further appeared to raise new ar- gument not raised before TCC to effect that his rights under para- graph 6(2)(b) of Charter were violated as Minister did not take into account his right to pursue gaining of livelihood. No notice of constitutional question was served. Appeal dismissed. TCC made no error of law or palpable or overriding error in reach- ing its conclusions in respect of merits of assessments. TCC did not err in refusing adjournment or in dismissing Charter argu- ment. Case did not involve any discrimination made on basis of ground enumerated in s. 15(1) of Charter or of analogous ground. Considering lack of merit of con- stitutional argument raised and lateness of request, TCC did not breach procedural fairness by re- fusing to grant adjournment. Engel v. Canada (2017), 2017 CarswellNat 2710, 2017 FCA 122, Johanne Gauthier J.A., de Montigny J.A., and Woods J.A. (F.C.A.). Federal Court Immigration and Citizenship EXCLUSION AND REMOVAL Removal from Canada Refugee given meaning ful opportunity to participate in process Refugee was citizen of Nicara- gua who had voluntarily joined youth wing of Frente Sandanista de Liberacion Nacional (FSLN) in 1978 or 1979. In 1980 or 1981, refugee joined FSLN's armed force, Ejercito Popular Sandinista (EPS), and performed activities in conjunction with Military Police Special Forces Branch. Refugee claimed much of her participa- tion was coerced and that she was subjected to several threats and assassination attempts because of her knowledge of EPS' activities. Refugee came to Canada in 1993 and was determined to be Con- vention refugee. Immigration officer later determined refugee was inadmissible to Canada be- cause of her past membership in FSLN, which was believed to have engaged in terrorism. Refugee unsuccessfully applied for min- isterial relief. Refugee brought application for judicial review. Application dismissed. Refugee had not established that she was treated unfairly in ministerial relief process, nor that decision of Minister of Public Safety and Emergency Preparedness was unreasonable. Refugee had clear- 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! 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