Law Times - sample

Law Times • march 19, 2018 Page 13 www.lawtimesnews.com CASELAW CASELAW Supreme Court of Canada Criminal Law CHARTER OF RIGHTS AND FREEDOMS Unreasonable search and seizure [s. 8] Text messages are private communications Accused was convicted of fire- arms and drug trafficking of- fences, with convictions rest- ing on records of text messages seized from account associ- ated with co-accused pursu- ant to production order under s. 487.012 (now s. 487.014) of Criminal Code. Accused ar- gued that police were required to obtain "wiretap" authoriza- tion under Part VI of Code in order to comply with s. 8 of Canadian Charter of Rights and Freedoms. Accused sought to exclude text messages prior to trial, and trial judge found that accused lacked standing to challenge production order. On appeal, majority upheld trial judge's decision on stand- ing. Accused appealed. Appeal dismissed. Text messages were private communications, and accused subjectively expected privacy which was objectively reasonable, therefore he had standing to challenge validity of protection order. R. v. Jones (2017), 2017 CarswellOnt 19343, 2017 Car- swellOnt 19344, 2017 SCC 60, 2017 CSC 60, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., and Rowe J. (S.C.C.); affirmed (2016), 2016 Carswel- lOnt 10858, 2016 ONCA 543, J.C. MacPherson J.A., J. Mac- Farland J.A., and H.S. LaForme J.A. (Ont. C.A.). Federal Court of Appeal Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans Analysis to establish severe disability requires analysis of both personal characteristics and duty to mitigate Applicant S's request for Canada Pension Plan disability benefits was denied by Minister and af- firmed on reconsideration. Ap- peal to General Division was dismissed on grounds evidence did not establish that he lacked capacity to pursue sedentary, non-physically demanding em- ployment and had failed to do so and did not follow medical advice or provide reasonable explanation for failure to do so, so disability was not severe. Ap- peal Division dismissed further appeal holding that although General Division erred in ap- plying test for severity as it did not analyze how applicant's per- sonal characteristics impacted his capacity to pursue any sub- stantially gainful occupation in a "real world" context, question was moot as he had failed to fol- low medical advice. S applied for judicial review. Application dismissed. G not entitled to lead new evidence on application for judicial review. New evidence tendered provided additional information available at hearing before General Division and that went to merits. No procedural unfairness concerning failure to have interpreter at General Divi- sion hearing. Applicant has duty to raise issues of procedural fair- ness at earliest opportunity. G was represented by f luent para- legal and chose not to request interpreter although informed of his right to one. Analysis to establish severe disability un- der s. 42(2)(a) of Canada Pen- sion Plan Act requires analysis of both personal characteristics and duty to mitigate. If either aspect fails, severe disability not established. Given that Appeal Division's finding that applicant did not meet duty to mitigate, reasonable to find that any er- ror by General Division in ad- equately considering personal characteristics was moot. Deci- sion was reasonable. Sharma v. Canada (Attor- ney General) (2018), 2018 Car- swellNat 653, 2018 FCA 48, Da- vid Stratas J.A., David G. Near J.A., and J. Woods J.A. (F.C.A.). Tax INCOME TAX Administration and enforcement Advisory common interest privilege was not valid component of solicitor-client privilege Lawyer N, counsel for interve- nor A, prepared memo detailing tax consequences for each step in share purchase transaction, with contribution from lawyer K, counsel for taxpayers I Inc. and IG. Taxpayers refused to produce memo to Minister of National Revenue on ground of common interest privilege. Federal Court judge granted Minister's summary application to enforce requirements under s. 231.2(1) of Income Tax Act. Judge held that advisory com- mon interest privilege was not valid component of solicitor- client privilege. Judge was con- cerned about potential loss of evidence if memo were not dis- closed. Judge focused on Ameri- can decision that referred to article that stated that solicitor- client privilege should not pro- tect communications in allied lawyer setting. Taxpayers ap- pealed. Appeal allowed. Memo was protected by solicitor-client privilege, subject to whether it had been waived or was protect- ed by common interest privi- lege. There would be no loss of admissible evidence if memo was not disclosed because le- gal implications of transactions were matters for court to deter- mine. It was not appropriate for judge to rely on American case to effectively overturn Canadian decisions that recognized com- mon interest privilege. Based on Alberta and BC decisions, solicitor-client privilege was not waived when opinion provided by lawyer to one party was dis- closed, on confidential basis, to other parties with common interest in same transactions. Intervenor and taxpayers had sufficient common interest in transactions to warrant find- ing that memo was protected by solicitor-client privilege. Iggillis Holdings Inc. v. Canada (Minister of National Revenue) (2018), 2018 Carswell- Nat 702, 2018 FCA 51, Wyman W. Webb J.A., Richard Boivin J.A., and Donald J. Rennie J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 10974, 2016 Car- swellNat 6533, 2016 FC 1352, 2016 CF 1352, Peter Annis J. (F.C.). Tax Court of Canada Tax INCOME TAX Business and property income Taxpayers artificially lowered corporation's tax by having it pay expenses of renovation Taxpayers were brothers who owned corporation which was in construction and renovation business. Taxpayers purchased property in own names and ren- ovated it, with expenses paid by corporation. Appellants sold at profit and deposited $92,136.37 profit in joint account. Neither one declared profit. Corpora- tion provided trucks to taxpay- ers which were used personally, but taxpayers did not declare automobile benefit. Minister assessed taxpayers for profit in 2010 taxation year, automobile benefit and penalties. Taxpayers appealed. Appeals dismissed. Profit made was business in- come. Taxpayers had artificially lowered corporation's tax by having it pay expenses of reno- vation. Profit was not deposited in corporation's account and was used for personal purchas- es. Decision not to keep vehicle registers to record personal and business use was to minimize vehicle benefit. Proof offered as to use was not credible. Facts be- hind notices of assessment were not result of ignorance, incom- petence or negligence. Taxpay- ers were origin of facts, or they validated accounting by their agents. In both cases, they were totally and personally respon- sible for gross negligence. Penal- ties upheld. Cyr c. La Reine (2018), 2018 CarswellNat 3, 2018 Carswell- Nat 381, 2018 TCC 4, 2018 CCI 4, Alain Tardif J. (T.C.C. [Infor- mal Procedure]). INCOME TAX Capital gains and losses Unremitted GST/HST and source deductions paid by directors to CRA not allowable business investment losses Taxpayers each owned 25 per- cent of company and received letters from Canada Revenue 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-6 1 2018-02-16 1:00 PM

• Cover