Law Times

Law Times • February 26, 2018 Page 15 www.lawtimesnews.com CASELAW 18.1 of Federal Courts Act for judicial review of Executive Di- rector's decision. Applicant's ap- plication for judicial review dis- missed. Application dismissed. It was clearly open to Justice BS to amend warrant in 2013. Al- though 2010 Warrant was silent on issue of remission, 2013 War- rant can either be interpreted as change in applicant's sentence or as amendment ref lecting Justice BS's original intention. Executive Director's determination - that applicant's complaint about 2010 Warrant being amended did not involve judicial misconduct - was reasonable because amendment was something which occurred in course of judicial decision- making. Best v. Canada (Attorney General) (2017), 2017 Carswell- Nat 7256, 2017 CarswellNat 7770, 2017 FC 1145, 2017 CF 1145, Keith M. Boswell J. (F.C.). Maritime and Admiralty Law HARBOURS AND DOCKS Regulation Full environmental assessment only necessary if project " designated project" under Canadian Environmental Assessment Act Port authorities. Limited part- nership applied for permit to build and operate transfer coal facility at marine terminal used to ship grain, steel, and agricul- tural products. Facility would receive coal from United States by rail and load it onto barges for transport to another location where it would be transferred to vessels bound for Asia. Applica- tion underwent comprehensive review process pursuant to Port Authorities Operations Regula- tions and Canadian Environ- mental Assessment Act (CEA Act). Authority staff prepared environmental review decision statement expressing conclu- sion that project was unlikely to cause significant adverse effects, and they also issued project re- view report recommending ap- proval of project. Authorities' chief executive officer (CEO) approved project and issued permit to limited partnership, and later amended permit to al- low coal to be loaded directly onto ocean-going vessels. Two community groups and two in- dividuals brought application for judicial review. Application dismissed. There was no basis for overturning authority's deci- sions, as they were made fairly and lawfully. Authority was only required to determine whether project would be likely to cause significant adverse environmen- tal effects, as full environmen- tal assessment would have only been necessary if project was "designated project" under CEA Act. CEO had authority to make determination under CEA Act on behalf of corporation since obligation under CEA Act fell to authority itself, not to its board of directors. Further, authority was entitled to delegate determina- tion under CEA Act to CEO, and board had statutory power under s. 21.1 of Canada Marine Act to delegate determination under CEA Act to CEO as activity of authority. While permit itself made no reference to determi- nation under CEA Act, process leading up to CEO's decision made it clear that proper consid- eration was given to authority's obligations under CEA Act. Communities and Coal So- ciety and Voters Taking Action on Climate Change v. Canada (Attorney General) (2018), 2018 CarswellNat 116, 2018 FC 35, James W. O'Reilly J. (F.C.). Tax Court of Canada Tax INCOME TAX Administration and enforcement Donations in kind not supported by receipts not eligible as charitable deductions Minister re-assessed taxpayer for 2003 to 2006 taxation years and disallowed charitable deduc- tions claimed -- Taxpayer served notice of objection but Minister confirmed re-assessments -- Taxpayer appealed -- APPEAL DISMISSED -- Taxpayer gave donations to co-worker who also prepared his tax returns -- Do- nations were mostly in kind and taxpayer did not have receipts -- Co-worker later convicted of fraud in claiming charitable deductions for clients -- Several of charities had had their reg- istrations revoked by Minister -- Amounts claimed by taxpayer were large percentage of taxpay- er's total income -- Highly un- usual for taxpayer of his means to donate goods and/or cash of one-fifth to one-quarter of his gross income to charity -- Min- ister justified in re-assessing out- side limitation period as taxpay- er through his tax preparer had made misrepresentations -- At very least taxpayer neglectful in not reviewing his tax returns for 2003 and 2004 before preparer e-filed them on his behalf -- Tax- payer unable to produce single receipt supporting claim of char- itable donations during taxation years 2003 to 2006 -- Section 118.1(2) of Income Tax Act man- datory and failure to comply fatal to any claim. Zubeiru v. The Queen (2017), 2017 CarswellNat 5626, 2017 CarswellNat 5707, 2017 TCC 199, 2017 CCI 199, Rommel G. Masse D.J. (T.C.C. [Informal Procedure]). Information on negotiations between Minister and other taxpayers subject to settlement privilege Minister of National Revenue denied taxpayer's claim of non- capital losses in respect of for- eign currency trading activities. Taxpayer's appeal involved issues relating to possibility of reassess- ments being statute-barred, trad- ing transactions themselves, and imposition of gross negligence penalties. Taxpayer brought mo- tion for order requiring Minister to provide answers to questions on examination for discovery for which answers were refused. Motion granted in part. Minister was to produce complete report, subject to redactions of names of third party taxpayers. Report was relevant as its purpose was to assist CRA in determining whether or not transactions had attribute of legitimate transac- tions. Canada Revenue Agency (CRA) auditor was not to be gate- keeper with respect to documents that should be provided to court. Once court determined that document was relevant, Minister must produce complete docu- ment, not selected portions unless irrelevant portions were redacted to protect privacy of third party. Minister was to produce various CRA working papers and posi- tion papers relied on by auditor. Minister was to answer ques- tions regarding instructions CRA headquarters provided to auditor when auditing taxpayer. Minister was to provide communications with commissioner's office and another CRA office. Information that CRA headquarters officials provided to auditor or used when reviewing her work was relevant. Minister was not required to pro- duce information on negotiations between Minister and other tax- payers because it was subject to settlement privilege. Minister was obstructing discovery process, so taxpayer was awarded $10,000 in costs plus disbursements. Paletta v. The Queen (2017), 2017 CarswellNat 6899, 2017 TCC 233, Steven K. D'Arcy J. (T.C.C. [General Procedure]). INCOME TAX Employment income Evidence of control over workers and their work weighing strongly in favour of employment characterization Two workers, who were ad- ministrative assistants, were determined to be employees of appellant corporation. Workers were determined to be engaged in insurable employment and pensionable employment for purposes of Employment Insur- ance Act and Canada Pension Plan. Corporation appealed on ground that workers were independent contractors and had provided invoices for con- tract work. Appeals dismissed. Workers were employees. There were credibility concerns with corporation's principal. Neither worker submitted invoices pro- vided to corporation and in- voices were probably prepared by someone else, likely principal or his bookkeeper. It was not es- tablished that there was shared intention that worker would be employee or independent con- tractor. Evidence of control by principal over workers and their work weighed strongly in favour of employment characteriza- tion. Principal expected work- ers to be at office during office hours, had ultimate authority, trained workers and assigned their work. Equipment and sup- plies were provided by corpora- tion. Workers were paid hourly rates and bore no expenses. Connor Financial Services International Inc. v. M.N.R. (2017), 2017 CarswellNat 7061, 2017 CarswellNat 7365, 2017 TCC 242, 2017 CCI 242, Patrick Boyle J. (T.C.C. [Employment Insurance]). Ontario Civil Cases Aboriginal Law DEBTORS AND CREDITORS Property exempt from seizure Towing companies located within boundaries of First Nation could not claim protection under s. 89 of Indian Act Certain vehicles owned by On- tario residents and insured by insurer were involved in acci- dents or stolen. After accidents or thefts, ownership transferred to insurer. Vehicles were towed and stored by towing compa- nies owned by First Nation. All towing companies were locat- ing within boundaries of First Nation. Dispute arose regarding towing and storage fees. Insurer brought application under Re- pair and Storage Liens Act and towing companies unsuccess- fully brought application for dec- laration that ss. 23 and 24 of Act were not available to insurer as vehicles were exempt under s. 89 of Indian Act. Towing compa- nies appealed. Appeal dismissed. Insurer was not debtor nor credi- tor and it followed that towing companies could not claim pro- tection of s. 89. Section 89 of In- dian Act only protected against seizure from creditors or Crown. Taylor's Towing v. Intact Insurance Company (2017), 2017 CarswellOnt 19778, 2017 ONCA 992, C.W. Hourigan J.A., David Brown J.A., and Himel J. (ad hoc) (Ont. C.A.). Bankruptcy and Insolvency COMPANIES' CREDITORS ARRANGEMENT ACT Initial application Utility of empowering Monitor to drop its cloak of neutrality to bring inter-creditor proceedings was not established Group of debtor companies was involved in property de- velopment. Some debtors made payments-in-kind to creditors of other debtors, receiving inter- company credits in return. Over one year later, debtors sought Companies' Creditors Arrange- ment Act (CCAA) protection. Monitor alleged that replacing hard assets with impaired loans prejudiced creditors' recovery in CCAA proceedings and was oppressive under Ontario Busi- ness Corporations Act (OBCA). Monitor brought motion for advice and directions, seeking to be recognized as OBCA com- plainant on behalf of certain creditors. Motion dismissed. Monitor purportedly sought advice and directions, but re- ally sought judgment holding creditor liable. Monitor had not been empowered to bring pro- ceedings on behalf of CCAA debtors. Utility of empower- ing Monitor to drop its cloak of neutrality to bring inter-creditor proceedings was not established. There was no evidence to assess whether discretion should be ex- ercised to allow Monitor to sue or qualify as OBCA complain- ant. Absent evidence that could lead to inference of existence of reasonable expectations, reli- ance, and oppression, Monitor was unsuited to act for creditors in present case. Monitor is more constrained than creditors in its activities and ought to consider seeking court approval before undertaking litigation on behalf of particular interests. Urbancorp Cumberland 2 GP Inc., (Re) (2017), 2017 Car- swellOnt 20265, 2017 ONSC 7649, F.L. Myers J. (Ont. S.C.J.). Estates and Trusts ESTATES Requirements for due execution of will Will not admitted to probate where applicant failed to establish testator had knowledge of and approved of its contents Trial judge granted declaration that 2012 Will of testator not be admitted to probate, and dis- missed probate application. Trial judge found that there were sus- picious circumstances surround- ing changing of earlier, 1999 Will, and making of 2012 Will. Appli- cant appealed. Appeal dismissed. There was no error in judge's find- ing that applicant failed to satisfy burden to establish that testator had knowledge of and approved of contents of 2012 Will. Conclu- sion was inescapable on trial re- cord. Testamentary dispositions under 2012 Will were completely at odds with testator's testamen- tary intentions as communicated to his treating physician and various friends in 60 days prior to execution of 2012 Will, as well as with provisions of 1999 Will. 1999 Will was handwritten by testator, whereas he could not have prepared typed 2012 Will. There was absence of evidence at trial regarding instructions for or preparation of 2012 Will. There was absence of evidence from individual who was present when 2012 Will was executed and stamped and signed it. Cumula- tive circumstances surrounding making of 2012 Will cried out for explanation and for evidence that testator had knowledge of and ap- proval of its contents. Stekar v. Wilcox (2017), 2017 CarswellOnt 20164, 2017 ONCA 1010, Janet Simmons J.A., E.A. Cronk J.A., and David M. Paciocco J.A. (Ont. C.A.); af- firmed (2016), 2016 CarswellOnt 16264, 2016 ONSC 5835, Leder- man J. (Ont. S.C.J.).

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