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Page 14 September 4, 2017 • Law timeS www.lawtimesnews.com CASELAW consisted mostly of information and documentation which were in taxpayer's possession when it made representations during conference call hearing. New evi- dence did not provide much more than what was conveyed by par- ties during that hearing, and did not substantiate taxpayer's bald allegation that CRA was respon- sible for blocking revival of its corporate charter. New evidence did not establish that CRA failed to disclose any information that could have had material impact on Tax Court of Canada's view that taxpayer had not been dili- gent. This was not one of clearest cases where residual discretion should be exercised to admit new evidence in interests of justice. Taxpayer had known for many years that it had to revive its cor- porate charter and provided no evidence from which Tax Court of Canada could infer that it had serious plan as to how to obtain Ontario Minister's consent or otherwise obtain corporate re- vival. Intervention of court was not justified. 1218395 Ontario Inc. v. R. (2017), 2017 CarswellNat 2709, 2017 FCA 121, Johanne Gauth- ier J.A., de Montigny J.A., and Woods J.A. (F.C.A.). Federal Court Human Rights PRACTICE AND PROCEDURE Judicial review Subsequent decision was not new evidence Applicant, retired member of Canadian Armed Forces, was released from service due to ser- vice-related knee injury. Appli- cant brought complaint with hu- man rights commission claiming he was subject to discriminatory disciplinary process, sole purpose of which was to bar him from re- ceiving benefits, and he alleged adverse differential treatment in course of employment based on disability and language. Com- mission dismissed complaint pursuant to s. 42(2) of Canadian Human Rights Act because ap- plicant failed to exhaust griev- ance procedure. After grievance process was exhausted, applicant requested complaint be taken out of abeyance. Commission informed applicant it would not reopen or reconsider decision. Applicant applied for judicial re- view. Application dismissed. De- cisions themselves were not evi- dence, but were part of common law of land until they were varied or overruled. Finding of fact by court in one case could not be used as means to require recon- sideration based on new evidence grounds in subsequent case, as that would offend functus offi- cio. Subsequent decision was not new evidence. It was open to ap- plicant to seek judicial review of commission's original decision, which he did not do, and he could not now collaterally attack that decision. Underlying facts being challenged were available to ap- plicant at first instance and were not new evidence. Applicant's right to be heard was respected in reconsideration decision, there was no breach of natural justice, and conclusion fell within range of acceptable outcomes, made in intelligible, transparent and justi- fiable manner. Bossé v. Canada (Attorney General) (2017), 2017 Carswell- Nat 903, 2017 FC 336, Alan S. Diner J. (F.C.). Immigration and Citizenship ADMISSION Application for temporary resident or immigrant visa Applicant failing to provide qualifying offer of arranged employment not granted residence Foreign national (FN) was citi- zen of India who was working in Canada as web designer under post-graduate work permit. FN applied for permanent residence under federal skilled worker program on basis that he had qualifying offer of arranged em- ployment. Immigration officer refusing application on basis that FN did not provide qualifying offer of permanent employment. FN brought application for ju- dicial review. Application dis- missed. There was no obligation on officer to provide FN with opportunity to address concerns of officer when supporting docu- ments were incomplete, unclear, or insufficient to satisfy officer that FN met all requirements that stemmed from Immigration and Refugee Protection Regulations. While duty of procedural fair- ness required officer to alert FN of any concerns officer might have about credibility, veracity, or authenticity of documents, there was nothing in record suggesting officer had any concerns about genuineness of application. There was distinction between disre- garding evidence due to doubts as to its genuineness or reliability and finding evidence was insuf- ficient to prove fact on balance of probabilities. In this matter, offi- cer found documents submitted were insufficient to prove FN had qualifying offer of employment for indeterminate period. Doc- trine of legitimate expectations had no application in present case since issue was not incomplete- ness of application about which FN should have been advised but rather sufficiency of evidence in otherwise complete application. Singh v. Canada (Minister of Citizenship and Immigra- tion) (2017), 2017 CarswellNat 655, 2017 FC 266, Cecily Y. Strickland J. (F.C.). Tax INCOME TAX Administration and enforcement Court declining to set aside Minister's decision to waive reporting requirements Individual was contesting de- cision of Minister of National Revenue to relieve labour or- ganizations and labour trusts from having to file information returns for fiscal periods start- ing in 2017 pursuant to previous s. 149.01 of Income Tax Act. Fail- ure to comply with reporting re- quirements was at time offence punishable by s. 239(2.31) of Act. Both sections were repealed as of June 2017. Minister applied her discretion to waive report- ing requirements applicable to labour organizations and trusts under s. 149.01 of Act for their financial periods starting 2017. Minister maintained discretion conferred by express statutory authority to waive obligation to file any form or return man- dated under s. 220(2.1) of Act. Minister argued there was no re- maining lis between parties and no practical purposes would be served by Court in rendering decision. Minister brought mo- tion to strike underlying judicial review application on grounds that it was rendered moot due to legislative amendments. Appli- cation granted. There was lack of live controversy. There was no filing requirement that Minister could enforce for fiscal periods, while labour organizations or trusts could not be punished if no offence was committed. Even if information returns were filed, Canada Revenue Agency was prohibited from publishing in- formation returns on its website now that s. 149.01 was repealed. Setting aside waiver could not possibly serve any practical purposes. Concerns for judicial economy favoured in declining exercise of discretion to address issues. Individual no longer claimed private interest in mat- ter, and could not now buttress her application and claim new grounds for genuine interests that were not initially alleged in her application, such that she likely lacked public standing. Bernard v. Canada (Na- tional Revenue) (2017), 2017 CarswellNat 3954, 2017 FC 778, Peter Annis J. (F.C.). Tax Court of Canada Public Law SOCIAL PROGRAMS Employment insurance Objective reality of control by employer indicating employee not contractor Employer operated music school that provided lessons for Music for Young Children Program (MYC) as well as private piano lessons. Worker and employer entered into verbal agreement whereby worker was hired as music teacher. Employer deter- mined worker's schedule and paid worker $36 per hour. Min- ister of National Revenue de- termined worker was engaged in insurable and pensionable employment with employer un- der contract of service, within meaning of para. 5(1)(a) of Em- ployment Insurance Act and para. 6(1)(as) of Canada Pensions Plan for period from September 6, 2014 to May 3, 2015. Employer appealed. Appeal dismissed. There was no common intention between worker and employer; employer considered worker to be self-employed while worker considered herself to be em- ployee. Employer specifically referred to relationship with worker as being one of employer/ employee. Worker was trained Level One MYC teacher, and did not require instructions from employer on how to perform her duties. Employer controlled how worker was to interact with cli- ents, how worker's schedule was to be set, how classroom should be decorated, and how worker should reply and communicate with employer. Termination let- ter to worker showed that MYC students and private students were employer's students and not worker's; it also indicated worker had deadlines to meet, had to respond to enquiries in timely manner and had to keep accurate records. Objective re- ality of control that employer exercised over worker did not support employer's intention for worker to be independent con- tractor. Worker never used ser- vices of subcontractor to replace her during period; in case of her absence, worker had obligation to find replacement supplied by employer or reschedule classes or cancel them and not get paid. Worker's pay was not negotiable and was set at rate that was same for all music teachers working for employer; worker was paid whether student attended les- son or not. Both locations and equipment were leased by em- ployer; worker did not have any real risk of financial loss, and not have any capital expenditures. Coathup v. Minister of Na- tional Revenue (2017), 2017 CarswellNat 1351, 2017 TCC 54, Réal Favreau J. (T.C.C. [Em- ployment Insurance]). Tax INCOME TAX Administration and enforcement Taxpayer acquiescing or assenting to making of false statements and reassessed accordingly Taxpayer had connection to 2001 charitable donation program created to raise funds for hotel development program. Program worked by promoting charitable donation on creation and acqui- sition of timeshare property, and donation of vacation ownership weeks to registered charities. Program was charitable pro- gram in respect of which JG, law- yer working for project, issued legal opinion September 2001. Canada Revenue Agency (CRA) assessed JG under s. 163.2 of In- come Tax Act, and appeal from assessment was decided in favour of Crown. Taxpayer maintained his connection to donation pro- gram was significantly differ- ent and less than that of JG and others who could be described as promoters of program. Issue arose as to whether taxpayer par- ticipated in, assented to or acqui- esced in making of statements by 135 of participants in program that taxpayer knew, or would be expected to have known were false statements. CRA consid- ered taxpayer to be promoter and assessed him accordingly. Taxpayer appealed. Appeal dis- missed. Each of 135 receipts filed by donors with tax returns contained false statement. When taxpayer sent April 2002 letter to donors recommending they sub- mit official receipts to CRA, he participated in making of or as- sented to or acquiesced in mak- ing of false statements. Sending letter to donors in indifference to non-existence of global trust, and failure to implement trans- actional steps on which program was based, showed indifference to Act and constituted culpable conduct. Taxpayer's reliance on lawyer's opinion letter and verbal assurances was not in good faith. Fact that in his letter to K taxpay- er stated "I briefed you" suggest- ed he was involved in program. Taxpayer's obtaining appraisal of timeshare units was not con- sistent with his assertion that he had nothing to do in planning or preparation of program. Lan- guage and tone of August 12 let- ter suggested taxpayer was more than simply canvasser in respect of donation program. Even though many of issues in re- spect of 2001 donation program were unresolved, taxpayer was already looking forward to new charitable program for 2002; this implied taxpayer's involvement in 2001 was greater than he ac- knowledged. Although when he sent letter to donors taxpayer did not realize he mislead them, he knew there were serious prob- lems with transactions underly- ing program, and failure to con- sider whether transactions could have been implemented in 2002, with retroactive effect, showed indifference as to whether Act was complied with. Ploughman v. R. (2017), 2017 CarswellNat 1819, 2017 TCC 64, Don R. Sommerfeldt J. (T.C.C. [General Procedure]). Ontario Civil Cases Civil Practice and Procedure CLASS AND REPRESENTATIVE PROCEEDINGS Representative or class proceedings under class proceedings legislation Motion to decertify class action granted Between 1911 and 1917, prede- cessor to power company built dam at outlet of lake and ac- quired licences of occupation to raise level of lake for parts of shoreline. New shoreline was re- ferred to as contour line. Cottage owners who owned property surrounding lake commenced class proceeding against power company alleging shoreline was eroded because company or pre-

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