Law Times

Page 14 January 8, 2018 • Law Times www.lawtimesnews.com CASELAW Federal Court of Appeal Tax GOODS AND SERVICES TAX Supply Police services provided to company by province of Ontario were taxable supplies of such services Company was operator of toll highway near Toronto as result of concession and ground lease agreement between company and province of Ontario (prov- ince). Responsibility for main- taining traffic patrol on highway rested with Ontario Provincial Police (OPP). Province charges company fee for providing po- licing services of OPP in relation to highway. Issue was whether provision of these policing ser- vices was exempt supply which would not be subject to GST or HST. Effective July 2010, prov- ince added HST to invoices charged to company. Tax Court of Canada allowed company's appeal from certain reassess- ments that were issued under Excise Tax Act (ETA). Company was reassessed on basis that po- lice services provided to com- pany by province of Ontario were taxable supplies of such services. Tax Court determined that such services were municipal services and therefore supply of services were exempt supply for purposes of ETA. Crown appealed. Appeal dismissed. Issue on appeal was whether opening words of s. 21 of ETA "supply of municipal ser- vice" would support conclusion that s. 21 was intended to apply to provision of particular type of service such as municipal service. This section simply required that relevant service be provided by government or municipality. To read s. 21 as limiting "municipal service" to only service provided by government acting as mu- nicipal authority would required reading into provision limitation applicable to government in re- lation to authority under which service was being provided. As Tax Court judge noted, if "mu- nicipal service" was only service that municipality had mandate or responsibility to provide, it was difficult to determine what service provided by federal or provincial government would be exempt supply under s. 21 ETA. Applying this interpretation to national park example would mean that for any residents of na- tional park, for whom no munici- pality was obligated to provide services, services provided by federal government would not be "municipal services" for purpose of s. 21, even though such services would normally be provided by municipality. This was not result that Parliament intended and did not take into account that s. 21 applied to services provided by government or municipal- ity. Crown's reference to national park example reinforced, rather than derogating from, interpreta- tion adopted by Tax Court. The Queen v. 407 ETR Concession Company Limited (2017), 2017 CarswellNat 6586, 2017 FCA 220, Wyman W. Webb J.A., D.G. Near J.A., and Mary J.L. Gleason J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 4743, 2016 TCC 213, Steven K. D'Arcy J. (T.C.C. [General Procedure]). INCOME TAX Administration and enforcement Taxpayer's appeal quashed for failing to serve valid notice of objection prior to filing appeal Minister reassessed taxpayer un- der Income Tax Act, for unreport- ed income for four taxation years. Taxpayer attempted to appeal reassessments. Minister's motion to quash appeal on basis that tax- payer had not served valid notice of objection prior to filing notice of appeal was granted. Tax Court judge rejected taxpayer's argu- ment that notices of reassessment were not received by him, which if accepted would have meant that timeline for filing notice of objec- tion would not be based on dates set out on notices of reassessment. Taxpayer appealed. Appeal dis- missed. Taxpayer's attempt to challenge admissibility of certain documents that were used to im- peach his credibility during Tax Court hearing could not be con- sidered, as it was too late to raise issue that he had not raised it in notice of appeal or memorandum of fact and law. Tax Court judge did not err in allowing taxpayer to be cross-examined based on his previous affidavits or in basing credibility finding on any incon- sistency between his oral testimo- ny and prior affidavits. Fair read- ing of Tax Court judge's reasons led to conclusion that he based credibility finding not only on in- consistent statements but also on improbability of taxpayer's ver- sion of events. Taxpayer did not raise any argument that would justify interfering with credibil- ity finding. Tax Court judge did not commit any error in making finding that notices of reassess- ment had been mailed to taxpayer on dates identified by Minister. While Tax Court judge's analysis required Minister to introduce evidence establishing that notice of reassessment was sent after tax- payer alleged otherwise, before considering credibility of tax- payer, initially assessing credibil- ity of such allegation would not be error. If Tax Court judge were to determine that taxpayer was not credible in such allegation, it would amount to indirect find- ing that notice of reassessment was received and there would be no need for any further proof that notice was sent. Mpamugo v. Canada (2017), 2017 CarswellNat 2952, 2017 FCA 136, Wyman W. Webb J.A., D.G. Near J.A., and Mary J.L. Gleason J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 4728, 2016 TCC 215, David E. Graham J. (T.C.C. [Gen- eral Procedure]). Federal Court Immigration and Citizenship ADMISSION Immigrants Relevant experience was required as part of definition of "self-employed person" Applicant was Iranian citizen who worked in film and art in- dustry. Applicant applied for per- manent residence as part of Self- Employed Persons class. Appli- cation was refused by visa officer on grounds that applicant did not satisfy definition of self-employed person in s. 88(1) of Immigration and Refugee Protection Regula- tions. Officer was not satisfied ap- plicant was able to support him- self as self-employed individual in field of cultural activities and therefore was not satisfied appli- cant met test for relevant experi- ence. Applicant brought applica- tion for judicial review. Applica- tion dismissed. Officer's notes ad- equately explained basis of deci- sion that applicant lacked relevant experience. Relevant experience was required as part of defini- tion of "self-employed person" in Regulations. Having reasonably concluded that applicant was not self-employed person, no further assessment of application was re- quired. Negative decision did not mean documentation before of- ficer was not credible. There was no breach of procedural fairness. Momeni v. Canada (Minis- ter of Citizenship and Immi- gration) (2017), 2017 Carswell- Nat 860, 2017 FC 304, Patrick Gleeson J. (F.C.). REFUGEE PROTECTION Credibility Refugee Protection Division exercised independent judgment and conducted own assessment Applicants were husband, wife, and 12-year-old daughter, who claimed refugee protection on basis parents would be perse- cuted for breaching China's one- child policy. Applicant parents claimed that they wanted more children, but mother was forced to have two abortions and they were served with sterilization no- tices, and then f led China after officials attended their house to serve second sterilization notice and notice suspending daughter from school. Refugee Protection Division (RPD) dismissed appli- cants' claim, finding documents were not genuine and allegations not credible. RPD found fact that application for U.S. visa was made before authorities allegedly attended applicants' house un- dermined their claim, and noted one-child policy had changed to permit two children, so appli- cants would not be sterilized if they returned to China. Refugee Appeal Division (RAD) admit- ted new evidence that mother was pregnant, but did not admit new evidence of news article indicat- ing couples with two children still faced forced sterilization. RAD deferred to RPD's credibil- ity findings and agreed there was no persuasive evidence applicants would be sterilized. Applicants brought application for judicial review of RAD decision. Applica- tion dismissed. It was reasonable for RAD to refuse to accept article as new evidence, as information it was based on was available be- fore RPD hearing, and conjec- ture RAD referred to was that of activist who claimed new policy did not end forced sterilization. RAD's reasons were brief, but it was not unreasonable to defer to 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! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an Enhanced listing. ENCHANCE YOUR LISTING TODAY! Untitled-5 1 2018-01-03 10:44 AM

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