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Page 14 OctOber 30, 2017 • Law times www.lawtimesnews.com CASELAW Charter. While prior version of s. 101(1)(d), s. 46.01(1)(a) of Immigration Act, permitted those with Convention refugee status elsewhere, such as ap- plicant, to make Convention refugee claims against country of asylum, provision had been repealed in 1992. Principles of statutory interpretation did not support applicant's position. There was no basis to conclude CIC had erred by relying on ex- isting jurisprudence. While ap- plication had to be dismissed, question asking whether, as matter of statutory interpreta- tion, ineligibility under s. 101(1) (d) included person making ref- ugee claim against country that had recognized them as refugee, should be certified for appeal. Farah v. Canada (Minister of Citizenship and Immigra- tion) (2017), 2017 CarswellNat 845, 2017 FC 292, Richard F. Southcott J. (F.C.). Tax INCOME TAX Administration and enforcement Taxpayer in contempt of court for disobeying compliance order Taxpayer operated book- keeping and rental operation businesses. Canada Revenue Agency issued requirement let- ter to taxpayer for information and documents (requirement) pursuant to s. 231.2 of Income Tax Act. Requirement sought production of documents and records in order to conduct audit of taxpayer's income tax return for 2012 and 2013 taxa- tion years. Requirement letter was sent by registered mail and copy of requirement was de- livered to taxpayer. Taxpayer did not provide documents or records. Minister of National Revenue (Minister)'s applica- tion seeking compliance order to compel taxpayer to provide any access, assistance, informa- tion or documents sought from taxpayer pursuant to require- ment was granted. Compliance order compelling taxpayer to provide Minister with informa- tion or documents was issued. Compliance order was sent via registered mail to taxpayer's last known address. Taxpayer failed to comply. Minister brought motion to find taxpayer in con- tempt of Court for disobey- ing compliance order. Motion granted. Taxpayer was guilty of contempt of court by intentional act or omission with terms set out in compliance order requir- ing her to disclose certain docu- ments and records. Taxpayer did not appear before court nor pro- vide any documents in course of eight months since compliance order was issued. Failing provi- sion of requested information, taxpayer was to be imprisoned. CRA auditor explained she at- tempted, on multiple occasions, to review taxpayer's documents and records at her residence, in addition to multiple attempts to reach taxpayer by phone. Canada (National Revenue) v. Blake (2017), 2017 Carswell- Nat 5467, 2017 FC 901, 2017 CF 901, Richard G. Mosley J. (F.C.). Tax Court of Canada Tax GOODS AND SERVICES TAX Rebates Party holding title to property as agent and bare trustee entitled to claim new housing rebate Aunt was real estate agent who signed agreement to purchase new condominium unit from developer as co-purchaser with client, who backed out and was replaced with aunt's nephew. Aunt and her husband agreed to be co-borrowers on mortgage to help nephew obtain financ- ing and had their names placed on title. Aunt had trust declara- tion prepared to show that she and husband held title in trust for nephew so he could qualify for mortgage. Nephew lived in home and received net proceeds after selling home. Minister de- nied aunt's GST/HST new hous- ing rebate application on basis that aunt as "particular individ- ual" did not meet requirement of acquiring property for use as primary place of residence of particular individual or relation of particular individual. Aunt appealed on ground that she acted on behalf of nephew as his agent or trustee in acquiring new home. Appeal allowed. Where bare trust had been evidenced as per trust declaration in this case, agency relationship would reasonably co-exist. Agency and trust relationships in this case existed on implied basis prior to execution of trust declaration. "Particular individual" occu- pancy requirements should not apply to agent but they should apply to agent's principal, which was nephew. Aunt and husband were acting solely as agents and bare trustees for nephew. This relationship extended to aunt having made rebate application itself in her capacity as agent and bare trustee for nephew, who would receive benefit of rebate. Aunt was not "particular indi- vidual" but nephew, as principal of agency relationship, did sat- isfy requirements of being "par- ticular individual". Ngai v. R. (2017), 2017 Car- swellNat 2216, 2017 TCC 79, B. Russell J. (T.C.C. [Informal Pro- cedure]). Ontario Civil Cases Contracts ASSIGNMENT General principles Equitable assignment did not have to be in writing and registration made it effective Mortgages. Second mortgagee commenced action against mortgagors to enforce second mortgage and issued notice of sale. Mortgagors consented to judgment requiring payment in full or vacant possession in lieu. Mortgagors failed to pay and ultimately vacated property. Second mortgagee assigned sec- ond mortgage to assignee who immediately entered into agree- ment of purchase and sale with purchaser. Mortgagors brought motion for order staying sale of property. Motion dismissed. Second mortgagee made valid and subsisting assignment of second mortgage to assignee. There was sufficient evidence to find as matter of law that second mortgagee made equitable as- signment to assignee. Equitable assignment did not have to be in writing, and registration of assignment made it effective in any event pursuant to s. 78(4) and 101(3) of Land Titles Act. Mortgagors provided no admis- sible evidence that first mort- gage had been paid off by second mortgagee rather than assignee. Assignee had acted as holder of second mortgage when he paid first mortgage. Wilson v. Gooden-Allen (2017), 2017 CarswellOnt 14320, 2017 ONSC 3197, Emery J. (Ont. S.C.J.). Estoppel ESTOPPEL IN PAIS Promissory estoppel Husband's silence about property sale not amounting to any representation Husband and wife entered into separation agreement that, among other things, required wife to try to sell particular prop- erty that was in her name. Wife was to keep entirety of proceeds of sale if property sold for more than $1.5 million. If husband required wife to accept offer for less than $1.5 million within 18 months, or if husband sold property for less than $1.5 mil- lion after 18 months, husband was to pay difference to wife. Wife remained in control of sale after 18 months due to hus- band becoming ill, and she sold home for $1,180,000 without any input from husband. After husband died, wife brought ac- tion against husband's estate for $320,000 allegedly owing un- der separation agreement. Wife brought motion for summary judgment. Motion dismissed; action dismissed. There was no estoppel raised in circumstanc- es of this case. Husband's silence about wife remaining in control of sale had not amounted to any representation to wife that af- fected this case. At no time had wife represented to husband that she would list or had listed property for less than $1.5 mil- lion. Husband would have no reason to believe wife had listed property for less than $1.5 mil- lion. Husband's representation that it was acceptable for wife to list property could not be taken as representation that it was ac- ceptable to list property for less than $1.5 million, nor could it be representation that wife could accept offer for less than that amount without husband's approval. Zecha v. Zecha Estate (2017), 2017 CarswellOnt 4882, 2017 ONSC 1972, Gray J. (Ont. S.C.J.). Family Law CUSTODY AND ACCESS Variation of custody order Motion and cross-motion to change custody dismissed as no material change in circumstances Parties had one child. Order was made on consent that provided that parties would have joint custody of child, with child's principal residence to be with father. Mother brought motion to change custody order seek- ing additional time with child; father brought cross-motion to change custody order seeking sole custody. Motion dismissed; cross-motion dismissed. There was no material change in circumstances that justified change in custody or signifi- cant change in access. Existing order was not made long ago. Child had individual education plan and appeared to be mak- ing progress at school and in his self-regulation, but he had continuing challenges and he required regular and stable rou- tine. There should be no change to joint custody. Mother's pro- posal for two mid-week over- nights each week during school year was not in child's best inter- ests at this time. However, father had not complied with existing order as he did not allow mother to have child overnight on Sun- days of her alternate weekends, and he should now comply with order. It was reasonable to vary existing order to provide that if there was holiday or PA day attached to mother's alternate weekends then she was entitled to have that additional day with child. Harper v. Olner (2017), 2017 CarswellOnt 3702, 2017 ONSC 1628, A.C. Trousdale J. (Ont. S.C.J.). Insurance AUTOMOBILE INSURANCE Catastrophic impairment Plaintiff 's symptoms continuing for more than six years despite trauma therapy Defendant brought motion for declaration that plaintiff had not suffered permanent and serious impairment of impor- tant physical, mental and psy- chological function as result of motor vehicle collision. Motion dismissed. Plaintiff had as a result of collision suffered im- pairments of physical, mental or psychological function that were both "important" and "se- rious" within meaning of sec- tion 267.5 of Insurance Act. But for collision, plaintiff would not have suffered post-traumatic stress disorder and major de- pression. There was no evidence upon which to base finding that if plaintiff were to take medica- tion her condition would im- prove to point of eliminating most if not all of impairments in her function. Work plaintiff carried out following collision did not in any way equate to her pre-collision position. Plain- tiff 's symptoms and/or condi- tion persisted for more than six years despite trauma therapy she had been receiving consis- tently in that period and despite plaintiff 's altered lifestyle as it related to work, travel, and so- cial activities. Nemchin v. Green (2017), 2017 CarswellOnt 5524, 2017 ONSC 2283, Sylvia Corthorn J. (Ont. S.C.J.). Judges and Courts JUSTICES, MAGISTRATES AND PROVINCIAL COURTS Transfer of cases to higher court Small claims action transferred to Superior Court so claim of rescission could be brought Plaintiff purchasers brought ac- tion against defendant seller in Small Claims Court claiming damages of $24,475 arising from purchase of condominium unit. Purchasers brought motion for order transferring action from Small Claims Court to Superior Court of Justice so they could claim rescission of agreement. Motion granted. Rescission was not remedy within juris- diction of Small Claims Court. Purchasers should not be pre- vented from proceeding to trial on proposed amended claim if there was genuine issue for trial as to whether they were entitled to rescission of agreement of purchase and sale. Purchasers should not be deprived of right to trial of claim by reason of defective pleading when defect was capable of being cured by amendment without prejudice to seller. Purchasers made mis- take in selecting wrong court, but it would be disproportion- ate penalty to deny them op- portunity to pursue full extent of claim. It was appropriate to transfer case, and purchasers were permitted to amend plead- ing to claim rescission. Jacob v. Westwood Mall Holdings Ltd. (2017), 2017 CarswellOnt 4107, 2017 ONSC 1754, Price J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT LAW Termination and dismissal No prejudice for employer's failure to give notice of averaging in accordance with Labour Code Appellant employee was re- quired to complete training for f light operation but was on holi- days when training was first of- fered. Employee was terminated

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