Law Times

Law Times • January 22, 2018 Page 13 www.lawtimesnews.com Federal Court Immigration and Citizenship ADMISSION Application for temporary resident or immigrant visa Unreasonable for officer to make decision in isolation of applicant's actual situation Applicant was citizen of Nigeria who was convicted of distribu- tion of heroin in United States in 1993 and deported from that country. Applicant came to Can- ada in 1998 and claimed refugee status. Refugee application and application for review based on humanitarian and compassion- ate grounds were dismissed. Ap- plicant was found inadmissible to Canada because of criminal- ity and misrepresentation, and deportation and expulsion order issued. Applicant made three criminal rehabilitation applica- tions and second application un- der humanitarian and compas- sionate grounds. In 2015 appli- cant filed application for tempo- rary resident permit which was refused. Applicant was removed to Nigeria in 2015. Applicant was in 16-year common law re- lationship with Canadian citizen and operated successful Toronto business. Applicant brought ap- plication for judicial review of refusal of temporary resident permit. Application granted. Im- migration officer relied solely on narrow submissions presented by self-represented applicant. It was unreasonable for officer to ignore applicant's long immigra- tion history and particularly 16- year common law relationship and outstanding humanitarian and compassionate application. Officer's determination was made in complete isolation of ap- plicant's actual situation. Matter was remitted for re-determina- tion by different officer. Alabi v. Canada (Minister of Citizenship and Immigra- tion) (2017), 2017 CarswellNat 858, 2017 FC 294, Glennys L. McVeigh J. (F.C.). Labour and Employment Law OCCUPATIONAL HEALTH AND SAFETY LEGISLATION Administrative procedures under legislation Investigator required to provide reasonable opportunity to rebut adverse evidence Procedural fairness. Employee alleged to have been victim of ongoing psychological harass- ment in workplace since 2009. Employee brought complaint under s. 20.2 of Canada Occu- pational Health and Safety Reg- ulations concerning violence in workplace. Investigator was appointed and concluded that it was not case of workplace vio- lence within meaning of Regu- lations as actions referred to in complaint related to mainly managers or executives and she had personal condition that was independent of work. Employee brought application for judicial review. Application granted. Duty of procedural fairness was breached. It was impossible for employee to anticipate testimo- ny of executives and employees interviewed and investigator was required to provide her with reasonable opportunity to rebut any adverse evidence gathered in her absence. It was questionable how investigated could dismiss, at end of very summary inquiry, psychologi- cal damage suffered by employ- ee because of acts of violence based on employee's emotional fragility when he did not appear to have any medical expertise or particular qualifications. Pronovost c. Canada (Reve- nu national) (2017), 2017 Car- swellNat 6812, 2017 CF 1077, Luc Martineau J. (F.C.). Tax Court of Canada Tax INCOME TAX Administration and enforcement Motion to determine whether Minister could issue notice of determination of partnership granted Determination of question. Min- ister of National Revenue issued partnership notices of determi- nation to taxpayers, which con- cluded that partnerships were not valid and determined that losses reported by partnerships were nil for three years. Taxpay- ers appealed. Taxpayers brought motions to determine question of whether Minister could issue valid notice of determination in respect of purported partnership after concluding that no partner- ship existed. Motions granted. Proposed question under R. 58 of Tax Court of Canada Rules (Gen- eral Procedure) would be deter- mined at second stage of hearing. First two requirements of R. 58 of Rules were met, as question was question of law or mixed law and fact, which was raised in plead- ings. Question raised very narrow legal question about validity of is- suance of notices of determination in context of narrow set of facts. Determination of question before hearing may dispose of all or part of proceeding, or result in substan- tially shorter hearing or substantial savings in costs. Answering ques- tion in favour of taxpayers may invalidate notices of determina- tion. If question were answered in favour of Minister, preliminary is- sue dealing with validity of notices would be addressed and would be res judicata. Hearing of appeals should be shortened by amount of time equal to time taken to argue question at second stage of hear- ing. Question had not been fully considered in other cases. Consid- ering legislative scheme of partner- ship determination provisions, it could not be said that question had no reasonable prospect of success. 2078970 Ontario Inc. v. The Queen (2017), 2017 Car- swellNat 5899, 2017 TCC 173, Henry A. Visser J. (T.C.C. [General Procedure]). INCOME TAX Tax avoidance Series of transactions beginning with arrangement agreement was avoidance transaction Company V which dealt in medical diagnostic instruments filed proposal in bankruptcy and ceased medical business but had $16 million in business losses. Taxpayer B was oil and gas company which negotiated amalgamation agreement with V. Agreement involved issuance of Class B shares of V, which were converted to shares of amalgam- ated company. V claimed losses on 2006 return and Minister re-assessed and denied losses. Reassessment was based on as- sumptions related to allegations of sham and acquisition of con- trol. Taxpayer appealed. Appeal dismissed. Transaction was not a sham. Predecessor corpora- tions had plan of arrangement approved by Alberta court. Class B shareholders were not group of persons having control of V. General anti-avoidance rule (GAAR) applied. Ability of amalgamated corporation to use V's losses was tax benefit. Series of transactions beginning with arrangement agreement was avoidance transaction as not un- dertaken primarily for purposes other than to obtain tax benefit. V wanted to monetize its tax at- tributes and B wanted to obtain those attributes. Contrary to pol- icy of s. 256(7) of Income Tax Act to take account of Class B shares where existence of shares was ephemeral at time of amalgama- tion and where very existence of shares predicated on amalgama- tion occurring and where only on amalgamation did Class B shareholders contribute to capi- tal stock of corporation. This constituted abuse of provision. Birchcliff Energy Ltd. v. The Queen (2017), 2017 Car- swellNat 6871, 2017 TCC 234, Gaston Jorré J. (T.C.C. [General Procedure]). Ontario Civil Cases Business Associations CHANGES TO CORPORATE STATUS Arrangements and compromises Plan of arrangement to reduce existing secured and unsecured debt approved Applicant was parent Canadian based international pharmaceu- tical company whose share price lost more than 99 per cent of its value over two years, faced regu- latory problems and various oth- er business problems, including $3.7 billion worth of long-term debt. Applicant and its advisors commenced discussions re- specting transactions to improve its corporate structure with cer- tain stakeholders collectively known as Debtholder Com- mittees and Debtholder Com- mittee Advisors. Proposed Re- capitalization Transaction that applicant intended to implement through plan of arrangement under Canada Business Cor- porations Act (Act) would seek 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. 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