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Law Times • apriL 9, 2018 Page 17 www.lawtimesnews.com Supreme Court of Canada Constitutional Law STATUS OF CROWN Miscellaneous Canada could be held responsible for band's pre-Confederation claim In early days of colony, of Brit- ish Columbia, settlers displaced WL Indian Band ("band") from site of its village and sur- rounding lands ("village lands"). When British Columbia joined Confederation in 1871, under Terms of Union, Canada as- sumed responsibility for cre- ation of Indian reserves accord- ing. In 1881, alternate lands were allotted to band. Parliament established Specific Claims Tribunal ("Tribunal") through Specific Claims Tribunal Act ("Act"). First Nation may claim for compensation for its losses under s. 14(1)(b) for breach of legal obligation of Crown under Indian Act or any other legisla- tion "pertaining to Indians or lands reserved for Indians" or under s. 14(1)(c) for breach of legal obligation arising from provision or non-provision of reserve lands.. Band brought claim. Tribunal concluded that Imperial Crown breached le- gal obligation to band based on s. 14(1)(b) of Act and that Crown in right of Canada ("Canada") had breached fiduciary obliga- tion based on s. 14(1)(c). Tribu- nal further found that Canada could be held responsible under Act for band's pre-Confedera- tion claim. Canada applied for judicial review. Federal Court of Appeal allowed Canada's appli- cation and substituted its own decision dismissing band's spe- cific claim. B appealed. Appeal allowed. AlthoughTribunal was aware that sources and limits of Crown discretion varied be- fore and after Confederation, it found that the obligation that arose from fiduciary relation- ship when Colony assumed discretionary control over vil- lage lands fell within s. 14(2). In face of statutory definition of "Crown" developed in collabo- ration with First Nations, it was reasonable for Tribunal to adopt view of circumstances in which fiduciary obligation may be said to have "become" Canada's responsibility for purposes of s. 14(2) that ref lected continu- ity of fiduciary relationship be- tween Indigenous peoples and "Crown". Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development) (2018), 2018 CarswellNat 158, 2018 CarswellNat 159, 2018 SCC 4, 2018 CSC 4, McLachlin C.J.C., Abella J., Moldaver J., Karakat- sanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellNat 10104, 2016 Car- swellNat 493, 2016 FCA 63, 2016 CAF 63, Johanne Gauthier J.A., C. Michael Ryer J.A., and David G. Near J.A. (F.C.A.). Federal Court of Appeal Tax INCOME TAX Administration and enforcement Motion to compel production of policies and interpretations of CRA dismissed Minister of National Revenue issued tax assessments against taxpayer on ground that he had unreported income for three years. Taxpayer appealed. Tax- payer brought motion to com- pel production of documents, including all policies and inter- pretations of Canada Revenue Agency (CRA) in relation to personal endeavours and hob- bies, all documents relating to gross negligence penalties, and CRA's policies as to whether net worth audit should be complet- ed. Tax Court of Canada judge dismissed motion on grounds that first two requests were broad and vague, and that re- quests were abusive and delay- ing tactic. Taxpayer appealed. Appeal dismissed. Judge made no reviewable error in dismiss- ing motion. Taxpayer's judicial authorities were distinguishable on their facts. DiLalla v. Canada (2018), 2018 CarswellNat 146, 2018 FCA 28, J.D. Denis Pelletier J.A., D.G. Near J.A., and Judith Woods J.A. (F.C.A.). Federal Court Privacy and Freedom of Information FREEDOM OF INFORMATION Federal legislation Mere suspicion that record existed not sufficient to establish premise that further records did exist Judicial review. Employer was Parks Canada Agency, for whom employee worked as compensation advisor. Em- ployee submitted request to employer under s. 6 of Access to Information Act seeking ac- cess to certain human resources decisions made between 2007 and 2014 relating to her work. Employer's access coordinator disclosed various documents after redacting others' personal information. Employee received further disclosure after follow- ing-up with coordinator and af- ter involving Office of the Infor- mation Commissioner, but em- ployee believed she had still not received all documents respon- sive to her request. Employee brought application for judicial review under s. 41 of Act. Ap- plication dismissed. This was not case of records being either withheld or missing. There was no evidence that there were any records to disclose other than what was given to employee. Mere suspicion or belief that record existed was not, in and of itself, sufficient to establish premise that further records did exist. Although not necessary to outcome, there were plausible explanations for why there were no additional records. Without evidence that employer con- trolled records it had not dis- closed or formally withheld, court did not have jurisdiction to question reasonableness of its search or to order further search of records. Tomar v. Canada (Parks Agency) (2018), 2018 Carswell- Nat 654, 2018 CarswellNat 998, 2018 FC 224, 2018 CF 224, E. Su- san Elliott J. (F.C.). Tax INCOME TAX Administration and enforcement Delegate to undertake critical analysis of evidence of best efforts Taxpayer discovered that office administrator had not kept suf- ficient records to enable prepa- ration of tax return for year- ended July 31, 2007. Taxpayer paid estimate of what was ow- ing. New office administrator who was also incapable misled both president and accountant as to status of both historical information and information for years subsequent to July 31, 2007. Taxpayer estimated its taxes for each taxation year and remitted payment based on es- timates to meet its expected tax obligation. By 2012, filing could be completed for the year-ended July 31, 2007 and then subse- quent periods through July 31, 2011. Delegate disallowed re- quest to re-appropriate statute- barred tax credits against fu- ture tax liability in amount of $185,817.71, monies remaining from garnishment after pay- ment of outstanding taxes and penalties for late filing. Taxpay- er sought judicial review. Ap- plication allowed. Decision was unreasonable. Minister's del- egate was required to state clear and supportable justification to deny re-appropriation request given large sum of money un- der consideration. Delegate was advised of serious problems encountered by taxpayer in re- structuring financial affairs due to issues not of taxpayer's making. Taxpayer's efforts were directed to meeting its respon- sibility, and once affairs were in order all taxes and penalties were paid without objection or request for relief. Delegate's de- cision centred on compliance with requirement that taxpay- ers must keep adequate records and without critical analysis of evidence of best efforts to meet requirement, delegate found that subjective expectations not met. Delegate's statement with- out clarification of what "suffi- cient action" was expected, and what "reasonable timeframe" was expected, constituted deliv- ery of punishment to taxpayer. Inclusion of GST record of tax- payer in decision-making pro- cess without providing advance notice and opportunity for to respond was not only unfair but was extraneous consideration introduction of which, in itself, rendered decision unreason- able. Referred Realty Inc. v. Can- ada (Attorney General) (2018), 2018 CarswellNat 312, 2018 CarswellNat 96, 2018 FC 59, 2018 CF 59, Douglas R. Camp- bell J. (F.C.). 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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