Law Times

Law Times • February 5, 2018 Page 13 www.lawtimesnews.com Supreme Court of Canada Transportation AVIATION AND AERONAUTICS Practice and procedure Total denial of public interest standing inconsistent with reasonable interpretation of legislative scheme Complainant filed complaint with Canadian Transportation Agency alleging airline's prac- tices regarding transportation of obese persons were discrimi- natory. Agency applied test for public interest standing that had been developed in civil courts and dismissed complaint on ba- sis complainant lacked standing. Federal Court of Appeal allowed complainant's appeal, finding Agency fettered its discretion. Matter was returned to Agency to determine, other than on ba- sis of standing, whether to hear complaint. Airline appealed. Appeal allowed in part. Agency unreasonably fettered its discre- tion. Agency's application of test was inconsistent with rationale underlying public interest stand- ing. Applying standing tests as Agency did would preclude any public interest group from ever having standing before Agency regardless of content of com- plaint. Total denial of public in- terest standing was inconsistent with reasonable interpretation of legislative scheme. Court of Appeal should not have held that standing rules could not be considered by Agency on recon- sideration. Matter sent back to Agency for reconsideration in its entirety. Delta Air Lines Inc. v. Lukács (2018), 2018 CarswellNat 50, 2018 CarswellNat 51, 2018 SCC 2, 2018 CSC 2, McLach- lin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellNat 4268, 2016 CarswellNat 9946, 2016 FCA 220, 2016 CAF 220, Wyman W. Webb J.A., A.F. Scott J.A., and Yves de Montigny J.A. (F.C.A.). Federal Court of Appeal Immigration and Citizenship ADMISSION Immigrants Capacity in one of Canada's official languages was relevant factor in promoting successful integration Plaintiffs applied for perma- nent resident status pursuant to ss. 12(2) of Immigration and Refugee Protection Act. Despite meeting all other requirements, plaintiffs were refused because they failed to meet language requirement by failing Interna- tional English Testing System (IELTS). Plaintiffs brought ac- tion against Minister of Citizen- ship and Immigration for dam- ages on basis of breach of statute, public misfeasance, bad faith, abuse of process and breach of Canadian Charter of Rights and Freedoms. Defendants suc- cessfully brought motion for summary judgment to dismiss action. Plaintiffs appealed. Ap- peal dismissed. Capacity in one of Canada's official languages was undoubtedly relevant factor in promoting successfully in- tegration. IRPA gives Minister authority to issue instructions regarding conditions that must be met before processing ap- plications. There was nothing in s. 87.2(4) of IRPA regulations that creates right to conduct substitute evaluation but rather provision was permissive one. It was not inconsistent with f lex- ibility granted to immigration officers under s. 87.2(4) of IRPA regulations to require that de- partment weed out applications from those who failed to meet minimum language proficiency criteria before they were pro- cessed thereby rendering their applications ineligible for sub- stitute evaluation. Cabral v. Canada (Citizen- ship and Immigration) (2018), 2018 CarswellNat 30, 2018 FCA 4, Wyman W. Webb J.A., D.G. Near J.A., and Mary J.L. Gleason J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 10966, 2016 CarswellNat 5902, 2016 FC 1040, 2016 CF 1040, Russel W. Zinn J. (F.C.). International Trade and Customs INTERNATIONAL TREATIES, AGREEMENTS, AND TRADE BODIES Miscellaneous Fact that party would be defending its own decision not weighing in favour of hearing moot matter Complainant HP Co. filed com- plaint with Canadian Interna- tional Trade Tribunal (CITT). Shared Services Canada (SSC) brought motion alleging that CITT lacked jurisdiction to hear complaint. CITT dismissed SSC's motion in preliminary decision and dismissed com- plainant's complaint on mer- its of decision. Crown brought application for judicial review of preliminary decision on ju- risdiction. CITT, as intervenor, brought motion to dismiss ap- plication for judicial review because it was moot. Motion granted and application for ju- dicial review dismissed. Crown acknowledged that application was moot. Discretion was not exercised to have matter heard. Fact that CITT would be de- fending its own decision did not weigh in favour of exercis- ing discretion to hear matter. If matter was rare and may not arise again, this did not weigh in favour of exercising discretion to hear this case. If there were other occasions to raise this issue, there should be case where there was opposing party, other than CITT, to advance arguments opposed to those advanced by Crown on merits of judicial re- view application. Canada (Attorney General) v. Hewlett-Packard (Canada) Co. (2017), 2017 CarswellNat 6583, 2017 FCA 227, Marc Noël C.J., Johanne Trudel J.A., and Wyman W. Webb J.A. (F.C.A.); application for judicial review refused (2017), 2017 Carswell- Nat 25, 2017 CarswellNat 26, Serge Fréchette Presiding Mem- ber (C.I.T.T.). Federal Court Tax INCOME TAX Administration and enforcement Expectation of privacy with respect to business records was very low Minister of National Revenue brought application under s. 231.2(3) of Income Tax Act (ITA) and s 289(3) of Excise Tax Act (ETA) for judicial authori- zation to impose requirement on company P Co. to provide information and documents re- lating to unnamed persons. Ap- plication granted. Minister was authorized to impose require- ment on P Co.. Conditions in statutes were met. Requirement related to ascertainable group of persons and was not over- broad. Unnamed persons were corporations and individuals holding business account with P Co. that had used P Co.'s on- line payment platform in course of commercial activities during four-year period. Application was brought in furtherance of valid audit undertaken to com- bat underground economy. In- formation sought was to verify compliance by unnamed per- sons with duties and obligations under ITA and ETA. P Co.'s confidentiality policy toward its clients or absence of thresh- old amount for each transaction of its clients did not constitute sufficient grounds to oppose requirement. Expectation of privacy with respect to business records was very low. Informa- tion sought was available in P Co.'s computer systems. It was appropriate and in interests of justice to exercise discretion in favour of Minister. Canada (National Rev- enue) v. Paypal Canada Co. (2017), 2017 CarswellNat 6671, Denis Gascon J. (F.C.). Tax Court of Canada Tax INCOME TAX Administration and enforcement Taxpayer did not file objection so no jurisdiction to entertain application for extension of time to appeal Taxpayer objected to Minister's reassessments under Income Tax Act for taxation years 2007 through 2011. Minister issued further reassessment for taxa- tion year 2011 and reassessment for taxation year 2012 and no notices of objection were filed. Taxpayer appealed in respect of 2006 and 2007 taxation years, but Minister subsequently reas- sessment him for 2007 taxation year. Taxpayer did not respond to Minister's response to ob- jection and 90-day period for filing appeal elapsed such that 2007 taxation year was no lon- ger properly before court. Status 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. CASELAW 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. 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