Law Times

Law Times • sepTember 25, 2017 Page 15 www.lawtimesnews.com CASELAW INCOME TAX Tax credits Separation agreement creating two obligations not just means of calculating support Taxpayer and ex-wife signed child support agreement in 2012, stating that in transition period, taxpayer would pay ex-wife $600 per month for two children. They further agreed that when children started spending equal or almost equal amounts of time at their two residences, taxpayer, as having greater income, would pay wife $100 per month. This amount was in accordance with applicable Federal Child Support Guidelines. Parties also agreed that for tax claims and deduc- tions, they would be split as fol- lows: wife would claim expenses in even numbered years and taxpayer in odd numbered years. Minister issued reassessment for 2013 taxation year, denying taxpayer wholly dependent per- son credit pursuant to s. 118(1) (b) of Income Tax Act, and child amount credit pursuant to s. 118(1)(b.1) of Act. Taxpayer alleged separation agreement was to be interpreted as requir- ing both he and his ex-wife to pay supports amounts; and that Canada Revenue Agency (CRA) violated his rights under s. 8 of Canadian Charter of Rights and Freedoms by demanding entire separation agreement, when they only needed relevant sec- tions, thus invading his right to privacy. Taxpayer appealed. Appeal allowed. Appeal al- lowed on basis there were two requirements to pay pursuant to their written separation agree- ment, which brought into effect s. 118(5.1) of Act and allowed tax- payer to claim credits. There was no violation of s. 8 of Charter. Another couple could make no reference to Guidelines but one was required to pay $400 and other to pay $300 and conclude with one payment of $100 only being required, and get credits. This was problematic, but was not Charter issue. In demanding document upon which Act itself stipulated credits were based, coincidentally advising taxpay- er such information would be kept confidential, CRA recog- nized delicate balance between state interest and privacy rights. Where separated couple relied on CRA commentary suggest- ing there could be one cheque for convenience sake, where couple drafted their agreement with intention to create mutual requirements to pay, where net payment was not based solely on Guidelines but represented obli- gation of one side to make pay- ments towards travel expenses of other and where subsequent written agreement was accepted by CRA while not altering prior agree-upon agreement, Court was prepared to interpret sepa- ration agreement as creating two obligations and not simply means of calculating one sup- port payment. Lawson v. The Queen (2017), 2017 CarswellNat 3198, 2017 TCC 131, Campbell J. Miller J. (T.C.C. [Informal Procedure]). Ontario Civil Cases Civil Practice and Procedure PLEADINGS Statement of claim Pleading of employment by Office of Ombudsman was pleading of legal conclusion Plaintiff formerly held office of Ombudsman of Ontario pur- suant to Ombudsman Act, he claimed that defendants Office of Ombudsman of Ontario and Legislative Assembly of Ontario were his employers, that his em- ployment was terminated with- out notice and without cause, and he was not provided reasonable compensation in lieu of notice. Plaintiff claimed that Assembly and Office of Ombudsman vio- lated their duty of good faith and fair dealing and made represen- tations in concerted effort to mis- lead plaintiff. Plaintiff brought action seeking declaratory relief, damages for wrongful dismissal, reimbursement of office expens- es, damages for negligent misrep- resentation, and aggravated and punitive damages. Office of Om- budsman brought motion under Rule 21.01(1)(b) of Rules of Civil Procedure to strike out statement of claim on ground that it dis- closed no reasonable cause of ac- tion; Assembly brought motion under s. 106 of Courts of Justice Act to dismiss action for lack of jurisdiction. Motions granted. Outcome of Office of Ombuds- man's motion turned on whether, as matter of law, Ombudsman, officer of legislature, was or could be employed by Office of Om- budsman. Plaintiff 's pleading that he was employed by Office of Ombudsman was not pleading of material fact that must be as- sumed to be true, but it was plead- ing of legal conclusion. Ombuds- man Act made it clear that Office of Ombudsman was position or office to which person was to be appointed by Lieutenant Gover- nor in Council on address of As- sembly. Upon his or her appoint- ment, person who held or occu- pied position was officer of leg- islature under Ombudsman Act. Duties of Ombudsman's office were statutory duties assigned to office to which Ombudsman, as officeholder, shall devote himself or herself. There were no provi- sions in Ombudsman Act that conferred upon Ombudsman's office itself, separate from of- ficeholder, legal rights or powers, or that subjected Ombudsman's office itself to duties to which of- ficeholder was not subject. As Of- fice of Ombudsman was position or office created by statute, it did not have separate legal existence from person appointed by Lieu- tenant Governor in Council on address of Assembly to hold that position or occupy that office. Neither Ombudsman's office nor Ombudsman had authority under Ombudsman Act to ap- point or reappoint person to oc- cupy office. Plaintiff did not and could not have legal relationship with himself as Ombudsman or with Office of Ombudsman independently of himself in rela- tion to claims made in statement of claim, and it was plain and obvious that statement of claim disclosed no reasonable cause of action. Marin v. Ontario (Office of the Ombudsman) (2017), 2017 Car- swellOnt 3739, 2017 ONSC 1687, P.J. Cavanagh J. (Ont. S.C.J.). Municipal Law MUNICIPAL CONTRACTS Tenders City had right to cancel request for quotations without awarding contract City requested quotations for div- ing services at water treatment fa- cilities. Plaintiff A Ltd. was lowest compliant bidder in response to request for quotations (RFQ). Af- ter close of bids, chief purchasing official (CPO) of City cancelled RFQ because integrity of tender process was compromised. CPO issued second RFQ for essentially same services. A Ltd. bid on sec- ond RFQ but was not lowest bid- der. A Ltd. commenced action against City for damages for loss of contract. A Ltd. claimed City breached duty of fairness by can- celling first RFQ and retendering contract. A Ltd. brought motion for summary judgment. Motion dismissed. Tender contract gave City right to accept or reject bids and right to cancel RFQ without awarding contract. City's pur- chasing bylaw gave CPO author- ity to cancel any call for tenders or quotations where integrity of call process was compromised. First RFQ was cancelled because of concern that not all bidders were provided access to facility draw- ings and diving inspection re- ports. City had duty to investigate those concerns, which affected integrity of tender process. City did not breach duty of fairness and was not liable to A Ltd.. ASI Group Ltd. v. Toronto (City) (2017), 2017 CarswellOnt 12929, 2017 ONSC 3385, J.R. Henderson J. (Ont. S.C.J.). Professions and Occupations BARRISTERS AND SOLICITORS Fees Equities were to be balanced when considering whether to grant charging order Charging order. U Ltd. was gen- eral contractor on construction project for church. U Ltd. ex- ecuted Indemnity Agreement (IA) in favour of insurer which was U Ltd.'s surety with respect to project. When church failed to make payment, U Ltd. brought claims and liens against church, and subcontractors brought claims and liens against U Ltd.. U Ltd. retained firm to handle claims and liens. Church posted bond of $1,088,867.76 to vacate liens. Church assigned its inter- ests in bond to U Ltd.. Amount posted was eventually reduced to $757,318.40. Firm's ex parte charg- ing order over bond funds was set aside. U Ltd. consented to firm's second motion for $879,646.96 charging order Insurer was added as party and challenged firm's order in separate action claim- ing damages under IA against U Ltd. and related companies. U Ltd.'s principal, H, and lawyer for firm, D, on their affidavits, H and D refused to answer insurer's 131 questions when insurer cross- examined them on their affida- vits. Insurer brought motion to compel H and D to answer ques- tions. Motion granted in part. Questions regarding quantum of charging order not subject to so- licitor client privilege were prop- erly put to D and H and were to be answered. Quantum was relevant issue in circumstances of case. Firm's entitlement to charging or- der did not extend to any amount it wished. This was not simple dis- pute between lawyer and client. Insurer had no obligation to pay firm and its interest should not be infringed because U Ltd. did not pay firm or contest firm's request for charging order. Though proof that quantum claimed was rea- sonable was not requirement to establishing entitlement to charg- ing order, fairness required that insurer be able to challenge quan- tum of charging order sought in circumstances. Equities were to be balanced when considering whether to grant charging order. Normally, balancing of equities only involved those of client and claiming solicitor, as they were only interested parties. In this case insurer's interest in funds had to be considered. Any quan- tum charged should be confined to reasonably incurred fees and disbursements. Yong Tai Construction Ltd. v. Unimac Group Ltd. (2017), 2017 CarswellOnt 5125, 2017 ONSC 2223, P.W. Sutherland J. (Ont. S.C.J.). Real Property REGISTRATION OF REAL PROPERTY Boundaries and surveys Cedars constituting nuisance and not breach of Forestry Act to remove them Owner purchased property in 2008. Cedars were growing along backyard lot line, with some on one side or another, and some on lot line. Owner cut back ce- dars along lot line by as much as eight feet, and cut down one cedar that was over lot line and not on his property. Neighbour purchased adjoining property in 2014, and sought to erect fence to ensure safety of child with special needs. Fence required cutting cedars, which owner objected to. Neighbour eventually cut cedars that were in his "air space", on his side of lot line, and constructed fence on lot line. Owner's action against neighbour was dismissed. Owner appealed. Appeal dis- missed. Clear evidentiary record existed for trial judge's findings of fact. Conclusion that neighbour had no choice but to proceed to cut cedars was well founded and available on evidence. Cedars constituted boundary tree, and there was no error in trial judge's conclusion that cedars constitut- ed nuisance. Neighbour did not breach Forestry Act. Davis v. Sutton (2017), 2017 CarswellOnt 5533, 2017 ONSC 2277, Ricchetti J. (Ont. Div. Ct.). Ontario Criminal Cases Criminal Law OFFENCES Murder Actus reus for murder not proved as accused's plan still in preparatory stage Accused was charged with three counts of attempted murder and one count of attempting to pos- sess prohibited firearm. Accused and complainant were romanti- cally involved but complainant ended relationship because of ac- cused's assaultive behaviour. Af- ter several unsuccessful attempts to reconcile, accused began to threaten complainant prompt- ing her to call police and report his threatening behaviour along with prior assault after which accused engaged in more harass- ing behaviour, resulting in more charges, and series of firearms prohibitions. After being released from custody, police received in- formation that accused was try- ing to locate complainant and that he intended to kill both her and her three young children so complainant and her family were placed into Witness Protection Program. After accused tried contacting complainant through Facebook, police commenced undercover investigation with of- ficer posing as offender attending probation meeting and befriend- ing accused. Accused attempted to get firearm through undercov- er officer and in one conversation, stated that he was going to kill complainant's children and take his own life. Accused acquitted of attempted murder and convicted of attempting to possess pro- hibited firearm. Facts disclosed series of actions committed by accused in his avowed plan to kill complainant's children ranging from seeking undercover officer's assistance in obtaining firearm to searching for his intended tar- gets on internet. Accused had no knowledge of where complainant or her children were and admit- ted that he did not have firearm although he claimed that he could get one when needed. Ac- cused's plan to pay for firearm, by selling his passport, appeared to have stalled because he needed to send passport to his brother so that it could be altered to allow his brother to unlawfully enter country. Although accused had requisite mens rea for attempted murder, Crown failed to prove actus reus as accused's plan was still in preparatory stages. R. v. Francis (2017), 2017 Car- swellOnt 3726, 2017 ONSC 1505, S.A.Q. Akhtar J. (Ont. S.C.J.).

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