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Page 14 March 26, 2018 • Law TiMes www.lawtimesnews.com CASELAW Federal Court of Appeal Public Law PUBLIC AUTHORITIES Armed forces Decision-maker advised to consider recommendations of reviewing court but not required to follow them Applicant unsuccessfully claimed disability benefits on basis exposure to airborne par- ticles while in armed forces caused sarcoidosis. Panel of Vet- erans Review and Appeal Board (panel) dismissed applicant's ap- peal. Applicant's application for judicial review of panel's deci- sion was granted by judge S, who remitted matter to second panel for redetermination taking into account court's reasons. Second panel dismissed appeal. Appli- cant applied for judicial review alleging second panel did not follow instructions in judge S's reasons. Judge F dismissed ap- plication. Applicant appealed. Appeal dismissed. 2017 Fed- eral Court decision confirmed that in applications for judicial review, only instructions ex- plicitly stated in judgment bind subsequent decision-maker. Decision-maker is advised to consider comments and recom- mendations of reviewing court in its reasons, but is not required to follow them. Second panel considered judge S's reasons and concluded evidence did not establish military service was significant causal factor in development of sarcoidosis and applicant was not entitled to benefit. Judge F did not err in finding dismissal of second ju- dicial review application was not contrary to judge S's judgment or 2017 case. Ouellet v. Canada (Attorney General) (2018), 2018 Carswell- Nat 99, 2018 FCA 25, Wyman W. Webb J.A., Richard Boivin J.A., and J. Woods J.A. (F.C.A.); af- firmed (2017), 2017 CarswellNat 2728, 2017 CarswellNat 3457, 2017 FC 586, 2017 CF 586, Si- mon Fothergill J. (F.C.). Federal Court Criminal Law SEARCH AND SEIZURE Search and seizure under proceeds of crime legislation Failure to report importation of currency resulting in forfeiture Applicant was driving from Ontario to British Columbia when she inadvertently crossed Canada-United States border into Minnesota. At United States border crossing applicant advised American officials that she was in possession of more than $40,000 in Canadian cur- rency. Applicant immediately returned to Canada but at Ca- nadian border crossing she failed to report full amount of currency in her possession. Ap- proximately $42,000 was found in plastic shopping bag on pas- senger seat of applicant's car. Failure to report was violation of s. 12(1) of Proceeds of Crime (Money Laundering) and Ter- rorist Financing Act and cur- rency was seized as forfeit pur- suant to s. 18(1) of Act. Applicant sought review of seizure by Min- ister of Public Safety and Emer- gency Preparedness under s. 25 of Act. Minister's delegate found that there was failure to report importation of currency and confirmed forfeiture. Applicant brought application for judicial review of decision confirm- ing forfeiture. Application dis- missed. Applicant had burden of establishing that funds were not proceeds of crime. Applicant did not provide sufficient documen- tation to support her explana- tion that funds originated from sale of business. Applicant was advised in advance of decision that sales agreement she pro- vided was insufficient to meet evidentiary burden upon her and guidance was given to her with respect to what other docu- mentation she might provide to establish legitimacy of funds. Hoang v. Canada (Public Safety and Emergency Pre- paredness) (2017), 2017 Car- swellNat 7890, 2017 Carswell- Nat 8081, 2017 FC 1133, 2017 CF 1133, Patrick Gleeson J. (F.C.). Tax INCOME TAX Administration and enforcement Decision failing to explain why enforcement action was likely to uncover taxpayer's filing obligations Taxpayer was Canadian corpo- ration that owned property in Ghana worth over $100,000 and, as reporting entity, was required to file T1135 returns for 2005- 2013 tax years but failed to do so. Taxpayer was subject to penalty of $2,500 per return plus interest and requested relief from penal- ties and interest under Volun- tary Disclosure Program (VDP). Minister's delegate refused to exercise discretion provided in s. 220(3.1) of Income Tax Act to cancel or waive some or all of penalty or interest on basis that taxpayer's disclosure did not qualify under VDP as it was not voluntary. Taxpayer requested review and reconsideration of its VDP application which was denied again on grounds that disclosure was not voluntary and taxpayer applied for judicial review of decision. Taxpayer pro- posed to Department of Justice (DOJ) that judicial review be settled on basis that 2005-2010 T1135 returns were voluntary and would qualify for program, while 2011-2013 T1135 returns would be subject to statutory penalties. On basis of DOJ pro- posal, taxpayer discontinued its judicial review and decision was sent back for reconsideration, where delegate again concluded that taxpayer's disclosure was not voluntary. Taxpayer applied for judicial review of decision. Application granted. Delegate's decision was based on errone- ous findings of fact and without regard for material before her. Decision failed to explain why enforcement action was likely to uncover taxpayer's T1135 filing obligations and failed to address DOJ letter advising same. Del- egate's reasons did not indicate that she considered possibility that 2005-2010 disclosure may have been voluntary even if 2011- 2013 disclosure was not. Del- egate had not provided adequate reasons to support finding that enforcement action would likely have uncovered taxpayer's 2005- 2010 T1135 filing obligation. Matthew Boadi Profession- al Corp. v. Canada (Attorney General) (2018), 2018 Carswell- Nat 235, 2018 CarswellNat 55, 2018 FC 53, 2018 CF 53, Shirzad Ahmed J. (F.C.). Tax Court of Canada Public Law SOCIAL PROGRAMS Employment insurance Worker's employment not insurable where worker and employer not at arm's length Worker's husband was sole shareholder of appellant em- ployer, who hired worker as sales manager and paid her mini- mum wage. Worker claimed employment insurance (EI) benefits after loss of employ- ment. Following investigation, it was determined that worker's employment was not insurable because worker and employer were not dealing at arm's length with each other and terms of employment were not substan- tially similar to those if worker was dealing at arm's length with employer. Minister of National Revenue dismissed employer's appeal because worker's wage was much less than median wage paid to sales managers and worker continued to provide services for free while receiving EI benefits. Employer appealed. Appeal dismissed. It was reason- able for Minister to decide that worker and employer would not have entered into substantially similar contract of employment had they been dealing at arm's length. Worker was underpaid for services she provided to em- ployer. Worker often delayed cashing her pay checks when employer had insufficient funds to meet payroll obligations, which was not something that unrelated employee would agree to. Worker provided some ser- vices for free, which was not typ- ical of arm's length relationship. 6338372 Canada Inc. v. M.N.R. (2018), 2018 Carswell- Nat 383, 2018 CarswellNat 45, 2018 TCC 10, 2018 CCI 10, Rob- ert J. Hogan J. (T.C.C. [Employ- ment Insurance]). Tax GENERAL PRINCIPLES Prospective or retroactive legislation Commuted value of municipal employee's pension transferred to non-registered pension plan Taxpayer worked as mechanic for several years and was mem- 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. 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