Law Times

March 26, 2018

The premier weekly newspaper for the legal profession in Ontario

Issue link:

Contents of this Issue


Page 14 of 15

Law Times • march 26, 2018 Page 15 ber of municipal employee pen- sion plan. On January 1, 2009 company established pension plan for senior executives of company (new plan) and tax- payer was only member of new plan. New plan was registered as pension plan pursuant to In- come Tax Act effective January 1, 2009. Taxpayer transferred commuted value of his mu- nicipal employee pension to new plan. In 2013, Minister of National Revenue decided that new plan did not qualify for registration under Act and gave notice of intention to revoke new plan's registration. Minis- ter issued notice of revocation which purported to revoke reg- istration of new plan effective January 1, 2009 and on same day reassessed taxpayer's 2009 tax year to include commuted value of municipal employee pension pursuant to s. 56(1)(a). Approximately three and one- half years later, Minister issued proper notice of revocation, which revoked registration of new plan effective January 1, 2009. Taxpayer appealed. Ap- peal dismissed. Facts neces- sary to support reassessment did exist when reassessment was issued because s. 147.1(12) caused them to exist retroac- tively. When Minister reas- sessed taxpayer in 2013, new plan's registration had not yet been revoked. However, when that registration was ultimately revoked in 2017, revocation was effective as of January 1, 2009. Basis for reassessment was and always had been that commuted value of municipal employees pension was transferred to non- registered pension plan. Due to retroactive nature of revocation, facts underlying that basis of re- assessment were always present. Section 152(9) did not come into play because there had been no change to factual basis of reas- sessment. Mammone v. The Queen (2018), 2018 CarswellNat 91, 2018 TCC 24, David E. Graham J. (T.C.C. [General Procedure]). INCOME TAX Tax credits Qualitative elements could not override quantitative analysis of custody Taxpayer appealed by informal procedure Minister's finding that he was not an eligible in- dividual with shared custody of his three children during relevant period, from Janu- ary 2014 to September 2016 for Canada Child Benefit. Appeals dismissed. Taxpayer had shared custody of his children but withdrew after incident where police called and Director of Child Protection involved. Tax- payer obtained order confirm- ing that shared custody order still in force and consent order set out terms of access and sup- port. Taxpayer's custody did not exceed 37 per cent for 2015 and 39 per cent for 2016. Although court satisfied from a qualita- tive point of view that taxpayer was very present in lives of his children, his evidence did not allow court to conclude that his custody was on a basis of equal- ity or near-equality. Qualitative elements could not override quantitative analysis of custody. Taxpayer did not meet require- ments for person with shared custody. Théodore c. La Reine (2018), 2018 CarswellNat 462, 2018 Car- swellNat 90, 2018 TCC 23, 2018 CCI 23, Guy R. Smith J. (T.C.C. [Informal Procedure]). Ontario Civil Cases Civil Practice and Procedure TRIALS Jury trial Delay was sufficient reason, in and of itself, to grant motion striking jury notice Plaintiff pedestrian was struck by defendant's vehicle and al- leged he suffered injuries in- cluding traumatic brain injury resulting in post-concussion syndrome. Pedestrian brought action seeking damages for his injuries, including damages for attendant care services, and his wife and children also sought damages. Trial was scheduled for four weeks but at end of four-week period plaintiffs' case was not complete, two-thirds of witnesses remained to be called, and trial was scheduled to resume in 44 days. Part way through trial existence of um- brella policy with additional coverage available to defendant was disclosed. Plaintiffs brought motion for order that jury notice be struck, jury be discharged, and trial continue before judge alone. Motion granted. Delay was sufficient reason, in and of itself, to grant relief sought. Three of most critical witnesses to plaintiffs' case had already given their evidence, there was concern about lack of freshness in minds of members of jury, and their evidence was criti- cal to issue of causation. There would be gap of approximately two months between evidence of two neuropsychologists, and defendant's neuropsychologist would be much fresher in minds of jury. Issues raised by plaintiffs with respect to timing of evi- dence called at trial in relation to timing of jury's deliberation fell within scope of jury's reasoning process; had potential to preju- dice jury's reasoning process; and had potential to prejudice jury's ability to fulfil its role. Mechanisms in place to assist jury in fulfilling its role, includ- ing note-taking, charge to jury and audio recording of evidence, were not sufficient to make up for impact that delay would have on ability of jury to consider all of substantive evidence, assess credibility of all of witnesses and reach fair verdict. There was also potential prejudice to plaintiffs in presentation to jury of claim for damages for attendant care due to timing of disclosure of existence of umbrella policy and coverage available to defen- dant under that policy. While it was difficult to predict or assess magnitude of potential preju- dice, potential prejudice arose because of timing of disclosure of insurance information and strategic decisions made by plaintiffs immediately follow- ing disclosure of information. Justice was better served by dis- charging jury. Rolley v. MacDonell (2018), 2018 CarswellOnt 762, 2018 ONSC 508, Sylvia Corthorn J. (Ont. S.C.J.). Contracts CONSTRUCTION AND INTERPRETATION Words and phrases Right of first refusal limited to parties to agreement and not extending to parties' heirs Four brothers divided large par- cel of land given to them by their father into four separate parcels and entered agreement giving each right of first refusal to ac- quire parcel any other proposed to sell or dispose of outside fam- ily. Brother D died and was sur- vived by his wife. Brother J died and his parcel was transferred to his wife and two sons. J's wife and sons proposed to sell their parcel to corporate defendant. They acknowledged sale was subject to right of first refusal in favour of three brothers and delivered notice giving each 21 days to exercise their right to ac- quire property on same terms. D's wife gave notice she intend- ed to exercise her right as family member to acquire parcel. Cor- porate defendant took position agreement did not give D's wife any right of first refusal. D's wife commenced action and brought motion for summary judgment granting her order for specific performance. Corporate defen- dant brought cross-motion for summary judgment dismiss- ing action. Motion dismissed; cross-motion granted. Motion judge found that agreement specified that benefit of right of first refusal accrued only to "remaining parties" or "other parties". D's wife appealed. Ap- peal dismissed. It was open to motion judge to find that agree- ment was not ambiguous. On its face, right of first refusal was limited to parties to agreement. Motion judge found that evi- dence of parties' intention relied on by D's wife had little or no probative value and ran afoul of parol evidence rule in any event. Motion judge's finding that there was no ambiguity requir- ing admission of parol evidence of intention was entitled to def- erence. Bennett v. Bennett Estate (2018), 2018 CarswellOnt 560, 2018 ONCA 45, K. Feldman J.A., J.C. MacPherson J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2017), 2017 Carswel- lOnt 12527, 2017 ONSC 1811, E.J. Koke J. (Ont. S.C.J.). Estates and Trusts ESTATES Will challenges Law not requiring testatrix to have encyclopedic knowledge of assets, especially when estate was extensive Deceased left his estate to wife pursuant to will. Wife executed mirror will which left estate to husband, with residue split unevenly between two sons. In 2014, wife executed codicil which dramatically changed will in which estate trustee was changed, will gave specific be- quests to grandchildren and completing disinheriting son F. Ruling on whether there were suspicious circumstances exist- ing at time of execution of codi- cil. There were no suspicious circumstances. Son F raised suf- ficient suspicious circumstances to shift onus to son L. Son L suc- cessfully negated any inferences that wife did not have testamen- tary capacity or was unduly in- f luenced. While wife may have been wrong in negative feelings about son F and cheque, she did not suffer from any disorder of mind that poisoned her affec- tions. Fact that wife made some mistakes about how some bills were paid was not major con- cern to doubt capacity. Law did not require testatrix to have en- cyclopedic knowledge of assets, especially when there was exten- sive estate. Quaggiotto v. Quaggiotto (2018), 2018 CarswellOnt 764, 2018 ONSC 345, Steven Rogin J. (Ont. S.C.J.). Evidence REAL EVIDENCE Videos Video containing significant gaps not having sufficient probative value to warrant admission as evidence Pedestrian suffered from sar- coidosis, which resulted in pain in lower half of his body, but which was expected to subside after several years. Pedestrian was struck by motorist's vehicle and reportedly suffered mild brain injury and upper body injuries. Pedestrian brought ac- tion against motorist for dam- ages for negligence. Motorist had investigator conduct three rounds of surveillance over pe- riod of about seven months, and resulting video recordings contained various significant gaps. Matter was being tried before jury. Motorist brought motion for leave to rely on sur- veillance video recordings as substantive evidence. Motion dismissed. Three-part test for admissibility of surveillance video recording as substan- tive evidence consisted of: 1. accuracy in truly representing facts; 2. fairness and absence of any intention to mislead; and 3. verification on oath by per- son capable of doing so. While investigator's explanations for gaps were generally reasonable and plausible, consequence of having various significant gaps was that recordings became se- ries of excerpts pieced together by editing. If jury is required to make assumption about what happened during gaps, then re- cording could not be said to be fair, accurate, and representative of events that occurred. Most of recordings failed first two parts of test, though no intention to mislead was found. Certain seg- ments that satisfied three-part test were inadmissible due to not having sufficient probative value to warrant admission as evidence. Rolley v. MacDonell (2017), 2017 CarswellOnt 21233, 2018 ONSC 164, Sylvia Corthorn J. (Ont. S.C.J.). Insurance AUTOMOBILE INSURANCE No-fault benefits Reasonable for arbitrator not to receive testimony of expert witnesses Insurer denied applicant's post- 104 week income replacement benefit claim, cost of treatment plans and examinations. Ap- plicant commenced arbitra- tion. Arbitrator determined that applicant was not entitled to any further income replace- ment benefits or claimed medi- cal expenses. In course of that hearing, insurer successfully brought motion to exclude any documents, reports or assess- ments that applicant would rely on, exclude any expert witnesses that applicant sought to rely on and exclude all witnesses from testifying. Director's delegate of Financial Services Commission of Ontario denied applicant's appeal and orders that appli- cant's solicitors personally pay $3000 in costs to insurer. Appli- cant and her solicitors brought application for judicial review. Application dismissed. To grant adjournment to permit affida- vit to be prepared would have necessarily resulted in much lengthier adjournment of ar- bitration hearing. Applicant's solicitors knew well before hearing that insurer intended to challenge submission of her documents and should have come prepared with affidavit and supporting materials. Ar- bitrator and director's delegate were concerned with prejudice to applicant and to insurer that would result from adjournment and with prejudice to commis- sion in adjudicating cases at large. It was reasonable for arbi- tration not to receive testimony of expert witnesses because they were not in fact experts. Cyr v. State Farm Mutual Automobile Insurance Com- pany (2018), 2018 CarswellOnt 1025, 2018 ONSC 563, Sidney N. Lederman J., Nancy J. Spies J., and Michael G. Quigley J. (Ont. Div. Ct.); application for judicial review refused (2016), 2016 Car- swellOnt 8692, Lawrence Black- man Dir. Delegate (F.S.C.O. App.). CASELAW

Articles in this issue

Links on this page

Archives of this issue

view archives of Law Times - March 26, 2018