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Page 14 January 29, 2018 • Law Times www.lawtimesnews.com CASELAW tors but rather required officer to balance all positive and nega- tive factors and here, criminal offence weighed heavily against applicant. Bisla v. Canada (Citizenship and Immigration) (2017), 2017 CarswellNat 7548, 2017 Carswell- Nat 7701, 2017 FC 1164, 2017 CF 1164, Ann Marie McDonald J. (F.C.); application for judicial review refused (2016), 2016 Car- swellNat 10436, 2016 Carswell- Nat 4474, 2016 FC 1059, 2016 CF 1059, Alan S. Diner J. (F.C.). Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans Claimant denied CPP disability benefits based on depression caused by homophobic discrimination Claimant was denied Canada Pension Plan disability benefits by General Division of Social Se- curity Tribunal of Canada. Basis of claim was inability to work due to anxiety and depression arising from homophobic discrimina- tion in various workplaces Appli- cation for leave to appeal refused under s. 58 of Department of Employment and Social Devel- opment Act. Claimant applied for judicial review. Application dismissed. Claimant provided no medical evidence to show 2007 doctor's declaration that claimant able to return to regular duties was incorrect or his condition had changed. Insufficient evi- dence to show he was disabled in December 2008 and his employ- ment in 2011-2012 showed he had not been continuously disabled. Recent doctor's report stating he was incapable of working due to anxiety and depression came several years subsequent to quali- fying date of December 2008 and was considered by court in refusing leave to appeal. Not role of court to re-weigh evidence and make new determination on merits. General Division consid- ered claimant's circumstances at great length and decision was reasonable, as was Appeal Divi- sion's decision. Euverman v. Canada (At- torney General) (2017), 2017 CarswellNat 6630, 2017 Car- swellNat 6929, 2017 FC 1054, 2017 CF 1054, Michael D. Man- son J. (F.C.). Tax INCOME TAX Administration and enforcement Acceptance of voluntary disclosure and waiver of penalties not estopping CRA from issuing reassessment In 1978, taxpayer allegedly trans- ferred $300,000 to tax haven. In 2014, taxpayer voluntarily dis- closed unreported income for years 2005 to 2014. Canada Rev- enue Agency (CRA) accepted disclosure, waived penalties and granted interest relief for 2005 to 2014. CRA began audit of taxpay- er's income tax returns from 1980 to 2004. Taxpayer brought appli- cation for judicial review, arguing that issuing any assessment in relation to adjustment proposal prepared by CRA would be con- trary to agreement entered into following voluntary disclosure. Taxpayer brought motion for emergency suspension and inter- locutory injunction order to pre- vent Minister of National Rev- enue from issuing reassessment under s. 152(4) of Income Tax Act for 2004 tax year or earlier. Mo- tion dismissed. Taxpayer's appli- cation for judicial review did not raise serious question. Taxpayer would not suffer irreparable harm if motion for suspension and interlocutory injunction was not granted. Balance of prob- abilities was not in taxpayer's favour based on public interest in this case. Evidence did not es- tablish that CRA agreed not to raise reassessments for prior tax years that resulted in application of doctrine of estoppel in public law. Taxpayer did not cite any ju- risprudence relating to merits of prohibition to prevent exercise of discretion assigned to Minister. There was another appropriate and effective recourse for rais- ing substantive issue, by way of objection or appeal. Balance of convenience favoured Minister, as public interest in orderly ap- plication of Act took precedence over inconveniences to taxpayer. Gauthier c. Canada (Reve- nu national) (2017), 2017 Car- swellNat 7691, 2017 CarswellNat 7692, 2017 FC 1173, 2017 CF 1173, Luc Martineau J. (F.C.). Tax Court of Canada Public Law SOCIAL PROGRAMS Employment insurance Owners of shares in company not in arm's length position to company so not in insurable employment M was chartered professional accountant; D was chartered professional accountant and auditor; and L was tax expert in training. Appellants M, D, and L worked for ARCI. M bought 51 per cent of shares in ARCI and L the remaining 49 per cent. D was brought in and M, D, and L each owned one-third of shares. Dur- ing period in dispute, neither appellants nor ARCI provided any services to other account- ing firms. Minister determined that M, D, and L were in insur- able employment. M, D, and L appealed. Appeals allowed. Rela- tionship that existed between ap- pellants and ARCI was "employ- er-employee" relationship, so there was employment contract between appellants and ARCI. Appellants and ARCI were not dealing at arm's length. Section 5(3)(b) of Employment Insur- ance Act not applicable as it dealt with persons who were related. To determine whether unrelated employer and employee not deal- ing at arm's length, court must analyze all the circumstances of employment to determine whether they will be considered not to deal at arm's length. Salary was well below what appellants could have obtained if they had worked in an accounting firm. Appellants' salary fixed regard- less of hours worked. Appellants could choose length of vaca- tions and were paid for them. Appellants could refuse clients or to work for client. M and L were guarantors of ARCI's line of credit. Appellants were not in arm's length position to compa- ny so not insurable employment. Martel c. M.R.N. (2017), 2017 CarswellNat 7587, 2017 CCI 238, Johanne D'Auray J. (T.C.C. [Em- ployment Insurance]). Tax GOODS AND SERVICES TAX Administration and enforcement Extension of time to object may not be granted unless application made within one year Not-for-profit corporation was incorporated to build afford- able housing complex, funded by government. Corporation submitted two applications for GST/HST new residential rental property rebate, which were denied. Corporation filed pur- ported notice of objection 1.5 years after dates of assessments. Corporation brought applica- tion for extension of time to file notice of objection. Application dismissed. Corporation did not file notice of objection or any- thing that could reasonably be construed as notice of objection, within statutory time period of 90 days after dates of assess- ments. Section 304(5) of Excise Tax Act specified that no appli- cation for extension of time to object may be granted unless ap- plication for extension had been made within one year follow- ing 90-day period. Application for extension of time was not brought for approximately 2.5 years after expiry of time period. Maple Tree Community Housing Corp. v. The Queen (2017), 2017 CarswellNat 6054, 2017 CarswellNat 6720, 2017 TCC 218, 2017 CCI 218, B. Rus- sell J. (T.C.C.). INCOME TAX Other deductions Valid charitable donation requires intention of taxpayer to impoverish self to benefit charity Taxpayer AM claimed charitable donation of $100,358, transferred donation deduction of $22,763 to spouse KM and carried forward donation deduction of $20,879 to future taxation years. Claim was based on initial receipt of $144,000 from registered charity OGH consisting of $18,000 cash and gifts in-kind of shares valued at $126,000. Minister reduced donation deduction of AM from $100,358 to $1,800, disallowed $20,879 donation deduction to be carried forward to future taxa- tion years and disallowed KM's donation deduction of $22,763. WK claimed charitable dona- tions made to registered charity PFT which consisted of $7,000 in cash and $42,000 as gifts in- kind of shares valued at $42,000, of which $40,689 was claimed in 2009 and $8,311 was carried forward to future taxation years. Minister reduced donation tax deduction from $40,689 to $700 and disallowed $8,311 donation tax deduction carried forward. Taxpayers appealed. Appeals dismissed. Company SGG was collecting donations for chari- ties and providing shares of D as part of donation. SGG kept 90 per cent of cash received from donors. For valid charitable do- nation taxpayer must intend to impoverish self for benefit of charity. Taxpayer who intends to enrich self by making use of inf lated donation receipt does not intend to impoverish self. Unrealistic to think that, in 2009, AM would have donated $322 less than his total taxable income for the year. Taxpayers not en- titled to claim amounts greater than amounts specified on their replaced donation receipts. Tes- timony and documentary evi- dence supported conclusion that D shares had no fair market val- ue. Gifting arrangement offered by SGG was an unregistered tax shelter and as taxpayers did not file prescribed form, no amount could be claimed by them with respect to gifting arrangement of SGG, including amounts allowed by Minister. As AM and WK did not met burden of proving they made charitable gifts to charities and did not provide evidence that value of D shares was in excess of nil, they did not met their burden of proving Minister's reassess- ments incorrect. As court had no power to increase assessment Minister's re-assessment stood as did disallowance of claim by KM. Murji v. The Queen (2018), 2018 CarswellNat 41, 2018 TCC 7, Réal Favreau J. (T.C.C. [Gen- eral Procedure]). Ontario Civil Cases Business Associations LEGAL PROCEEDINGS INVOLVING BUSINESS ASSOCIATIONS Practice and procedure in proceedings involving corporations Parties to bear own costs where neither could claim substantial success Dispute related to applicant's proposed development project in which respondent AC became involved. Applicant brought oppression application and ac- tion for breach of contract. Op- pression remedy was granted, but general damages were not awarded. Applicant only sought remedy for oppression, though breach of contractual obliga- tions was also established. Par- ties made submissions on costs, each claiming to have been suc- cessful party. It was ordered that parties bear their own costs. Applicant failed to prove losses related to AC's failure to fund development project. AC did not have cross-application, but sought relief in form of payout of his mortgage including interest, issue which was not finally de- termined. Both parties' versions of events were rejected, and both were found to be unsatisfactory witnesses. Neither party suc- ceeded in advancing their theory of case, and neither could claim substantial success. Litigation would accomplish nothing more than separation of parties' inter- ests. Neither side bore blame to greater extent than other for fact that it took significant expense of these proceedings to achieve parties' disentanglement. Bitton v. Checroune (2017), 2017 CarswellOnt 18709, 2017 ONSC 6731, J.T. Akbarali J. (Ont. S.C.J.); additional reasons (2017), 2017 CarswellOnt 6694, 2017 ONSC 2434, J.T. Akbarali J. (Ont. S.C.J.). (Ont. S.C.J.); ad- ditional reasons (2017), 2017 CarswellOnt 15276, 2017 ONSC 5542, J.T. Akbarali J. (Ont. S.C.J.). Civil Practice and Procedure COSTS Costs of particular proceedings No reason to deviate from general rule of full indemnity costs to successful party on SLAPP motion Defendant individual had defa- mation action brought against her, by plaintiff company. In- dividual successfully moved to dismiss action, as strategic law- suit against public participation (SLAPP). Individual sought her costs, on full indemnity basis. Company acknowledged full indemnity costs, but claimed individual's costs were excessive. Costs submissions made by both parties. Costs awarded to indi- vidual, in claimed amount of $122,286.94. Although counsel for company spent less time on motion, this was due to primary use of junior counsel by indi- vidual. There was no reason to deviate from general rule of full indemnity costs to successful party, on SLAPP motion. United Soils Management Ltd. v. Mohammed (2017), 2017 CarswellOnt 17782, 2017 ONSC 6350, Lederer J. (Ont. S.C.J.); ad- ditional reasons (2017), 2017 CarswellOnt 12491, 2017 ONSC 4450, Lederer J. (Ont. S.C.J.). LIMITATION OF ACTIONS Actions in tort Discovery date for battery claim was date of acquittal of criminal charges Battery. Plaintiff complainant alleged that defendant police of- ficers used unnecessary violence against him when investigating call from complainant's wife. Complainant was arrested for as- saulting officer and resisting ar- rest but was acquitted 20 months later. Two years and one day after alleged battery, complainant filed notice of action against police, and soon after filed statement of

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