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Law Times • OcTOber 23, 2017 Page 15 www.lawtimesnews.com CASELAW and reasonable inadvertence. In one year, taxpayer purported to claim deduction in amount ex- ceeding his deduction limit such that he had undeducted contri- bution in amount of $1,660. Due to these RRSP-related errors, taxpayer had aggregate unde- ducted contributions in amount of $10,229.62. Part X.1 tax on RRSP over-contributions that was assessed against taxpayer was properly payable. As taxpay- er was genuinely and reasonably of view that he had not made any overcontributions, he did not re- alize need to file return pursuant to s. 204.3(1)(a) of Act. Taxpayer's failure to file such forms resulted from reasonable error of fact so as to be excused by due diligence defence and late-filing penalties should be cancelled. Chiang v. The Queen (2017), 2017 CarswellNat 4300, 2017 TCC 165, Don R. Sommerfeldt J. (T.C.C. [Informal Procedure]). INCOME TAX Tax credits Taxpayer entitled to claim legal fees to resolve matters relating to child support Taxpayer and former spouse had two children P and R, both of whom lived with former spouse prior to late May 2014. In late May, P began living with taxpayer, and lived with him until mi-December 2014. P then moved back into mother's home. In August 2015, Court ordered taxpayer to pay $19,989.60 of child support owed in respect of period from September 2013 to June 2014 by lump sum pay- ment of $9,405.45 and by set- ting off remaining amount of obligation against amounts former spouse was required to pay taxpayer beginning June 2014, in respect of child support for P. In 2014 taxation year, tax- payer claimed, in respect of his son P, non-refundable tax cred- its under s. 118(1)(b) of Income Tax Act for wholly dependent person and under s. 118(1)(b.1) for child. Taxpayer also claimed $6,915 in respect of legal fees he asserted were incurred to col- lect support payments from his former spouse. Minister of National Revenue denied non-refundable tax credits and claimed legal fees. Taxpayer ap- pealed. Appeal allowed in part. Reassessment was referred back to Minister for reconsideration on basis that taxpayer was enti- tled to deduct $2,284 in respect of legal fees. August Court order clearly provided that, effective June 2014, taxpayer and former spouse were each required to make support payments. Both taxpayer and former spouse were required, during 2014, to make support payments in respect of P. Therefore, as re- sult of application of s. 118(5.1), s. 118(5) did not apply to deny taxpayer ability to claim s. 118(1) (b) and (b.1) credits. Taxpayer paid legal fees with respect to three separate issues: payment of child support by taxpayer to former spouse for P and R for period ending June 2014; pay- ment of child support for R for period ending June 2014; and payment of child support by former spouse to taxpayer for P for period ending June 2014. It was reasonable to allocate legal fees equally among three issues. Only one-third of legal fees incurred in 2014 related to payment of child support by for- mer spouse to taxpayer. Invoices for all services rendered totalled $6,853; taxpayer was hence en- titled to deduction for one-third of amount or $2,284. Ruel v. The Queen (2017), 2017 CarswellNat 2491, 2017 TCC 93, Steven K. D'Arcy J. (T.C.C. [Informal Procedure]). Ontario Civil Cases Business Associations SPECIFIC MATTERS OF CORPORATE ORGANIZATION Shareholders Oppression remedy not designed to relieve from limited liquidity attached to shares Siblings W, BD, and GD, through holding company shareholders, owned shares of family business S Ltd.. When W experienced financial hardship and wished to sell her interest in S Ltd., parties engaged in re- organization that resulted in W and her holding company sell- ing only part of their interest. W and her holding company again wished to sell their interest in S Ltd., but BD and GD refused to purchase this interest. W and her holding company brought action against BD, GD, their holding companies, and S Ltd. for relief from oppression. Ac- tion dismissed. W and her hold- ing company failed to establish any basis for relief sought under s. 248 of Business Corporations Act. W did not have reasonable expectation of liquidity for her shares in S Ltd.. W's interest was received as gift at time when her father wanted business to remain in family for long term and wanted to provide disin- centive for siblings to sell to third party. While shareholders agreement provided for right of first offer, agreement did not contain shotgun buy-sell clause or put right requiring shares to be purchased. Oppression rem- edy in s. 248 of Act was not de- signed to relieve minority share- holder from limited liquidity attached to his or her shares or to provide means of exiting cor- poration in absence of any op- pressive or unfair conduct. W's current financial circumstances were not in any way attributable to actions taken by any other parties. W's interests were not being unfairly disregarded by dividend arrangements. Wilfred v. Dare (2017), 2017 CarswellOnt 4111, 2017 ONSC 1633, Conway J. (Ont. S.C.J. [Commercial List]). Civil Practice and Procedure COSTS Particular orders as to costs Moving party should expect enhanced costs if allegations of unethical conduct not made out Full indemnity costs. When issues arose over respondent mother's capacity to function as trustee for deceased father's es- tate, her counsel J sought opinion from lawyer H about powers and authority of Public Guardian and Trustee on "no names" basis, but never retained him. Applicant daughter retained lawyer who worked at H's law firm, and com- menced litigation, alleging that mother and respondent siblings improperly administered father's estate. Motion judge dismissed respondents' motion for order prohibiting applicant's lawyers from acting for her. Parties made submissions on costs. Respon- dents were jointly and severally liable to pay to applicant costs on full indemnity basis of $25,500. Motion to remove counsel was not borne of any legitimate con- cern for misuse of confidential information. If allegations of unethical conduct by opposing counsel were not made out, mov- ing party ought to expect cost consequences at enhanced level. Respondents brought motion for illegitimate tactical reasons. Lack of bona fides was obvious because respondents had volun- tarily disclosed H's opinion prior to bringing this motion. Appli- cant was entitled to full indem- nity costs. Hourly rates and time spent were reasonable, but small adjustment was made for costs relating to motion for sealing or- der than had not yet been heard. Rubin Estate v. Rubin Es- tate (2017), 2017 CarswellOnt 3784, 2017 ONSC 1704, F.L. Myers J. (Ont. S.C.J.[Estates List]); additional reasons (2017), 2017 CarswellOnt 2926, 2017 ONSC 1404, F.L. Myers J. (Ont. S.C.J.[Estates List]). LIMITATION OF ACTIONS Estates Reasonable to treat person seeking contribution and indemnity as "person wronged" Plaintiff alleged that he was sex- ually assaulted by priest in 1976. Priest died in 2010. In 2013, plaintiff brought action against priest's estate and against epis- copal corporation (RCECO), claiming that latter was vi- cariously liable and breached independent duties owed to plaintiff. In 2014, RCECO is- sued cross-claim against estate. In 2015, plaintiff consented to order dismissing claim against estate as barred by two-year limitation period in s. 38(3) of Trustee Act. Estate brought mo- tion to dismiss cross-claim, re- lying on s. 38(3) of Trustee Act. Section 18 of Limitations Act, 2002 addresses commencement of limitation period applicable to claim for contribution and indemnity between tortfeasors. Section 18 provides that claim for contribution and indemnity is "discovered", and therefore limitation period begins to run, on day on which wrongdoer seeking indemnity is served with plaintiff 's claim. Motion judge dismissed motion, find- ing that s. 18 of Limitations Act, 2002 applied. Estate appealed. Appeal allowed. Limitation pe- riod under s. 38(3) of Trustee Act applied. Limitation period ap- plicable to cross-claim expired two years after date of death of tortfeasor from whom contribu- tion or indemnity was sought. Cross-claim is "action", therefore falling within s. 38 of Trustee Act. Since purpose of s. 38 was to enable claims to be brought against estates, it was reasonable to treat person seeking contribu- tion and indemnity as "person wronged". By terms of s. 19(4) of Limitations Act, 2002, limita- tions set out in Schedule prevail over provisions of Limitations Act, 2002. As s. 38(3) of Trustee Act was set out in Schedule, it had to prevail if it applied. Given legislative history of Limitations Act, 2002 dating back to 1969, fact that Trustee Act limitation period was expressly retained in Schedule ref lected clear policy choice in favour of certainty and finality in estate matters after fixed period of two years. Levesque v. Crampton Es- tate (2017), 2017 CarswellOnt 8319, 2017 ONCA 455, G.R. Strathy C.J.O., E.E. Gillese J.A., and G. Pardu J.A. (Ont. C.A.); re- versed (2016), 2016 CarswellOnt 21277, 2016 ONSC 6809, James J. (Ont. S.C.J.). PRACTICE ON APPEAL General principles Ruling that to allow plaintiff to split his case would be unfair was appropriate TG's claim for alleged unpaid immigration consulting services was dismissed and he was or- dered to pay costs to respondent YG in amount of $1961.00. TG appealed from decision of depu- ty judge in Small Claims Court. Appeal dismissed. It was open to trial judge in these circumstanc- es to conclude that failure of TG to give evidence in chief to prove his claim was deliberate. It was of little consequence whether or not failure to call adequate evidence to prove TG's claims was deliberate or unintended. He and his counsel were given full opportunity to call evidence and declined to do so. By the time TG sought to take stand, YG had completed her evidence and been cross-examined upon it at length. Trial judge's rul- ing that to allow TG to split his case would be unfair to YG and would not be permitted was ap- propriate determination which does not justify interference on appeal. Gebremariam v. Gebregior- gis (2017), 2017 CarswellOnt 5782, 2017 ONSC 2000, Stewart J. (Ont. Div. Ct.). Constitutional Law CHARTER OF RIGHTS AND FREEDOMS Nature of rights and freedoms Subjective feelings of unease not capable of ousting expression categorically from Charter protection Applicant B protested outside town hall. Police were called and B was issued trespass notice and directed to leave. When B re- fused, he was arrested and was issued trespass notice banning him from all town property for one year, as well as given pro- vincial offences ticket for failing to leave. B brought application seeking declaration that issu- ance of trespass notice violated his rights under s. 2(b) and s. 7 of Canadian Charter of Rights and Freedoms. Application judge dismissed application. B appealed. Appeal allowed. Ap- plication judge made error of law in concluding that B's protest did not come within ambit of s. 2(b) of Charter. Application judge extended concept of violence to include actions and words as- sociated with traditional form of political protest, on basis that some town employees claimed they felt "unsafe," which went much too far. Person's subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from protection of s. 2(b). Consequences of charac- terizing act as violence or threat of violence are extreme: it con- clusively defeats Charter claim without consideration of any other factor. Political protesters can be subject to restrictions to prevent them from disrupting others, but they are not required to limit their upset in order to engage their constitutional right to engage in protest. Once it is determined that act is violent or threat of violence, deliberation is at end and claim of s. 2(b) viola- tion is defeated Courts should therefore not be quick to con- clude that person's actions are violent without clear evidence. Here, there was no evidence that B's protest was violent or threat of violence, and finding that it was constituted palpable and overriding error. Whether issuance of trespass notice was viewed as means to silence B or simply as means of protecting others, it had effect of prevent- ing him from conveying his message to his intended audi- ence for entire year thereafter. This unquestionably limited his s. 2(b) rights. Trespass notice to be quashed and declaration to be issued that issuance of trespass notice by town constituted vio- lation of B's rights under s. 2(b) of Charter. Bracken v. Fort Erie (Town) (2017), 2017 CarswellOnt 13874, 2017 ONCA 668, K. Feldman J.A., P. Lauwers J.A., and B.W. Miller J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 13210, 2016 ONSC 1122, T. Maddalena J. (Ont. S.C.J.).

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