Law Times

Page 14 April 30, 2018 • lAw Times www.lawtimesnews.com CASELAW Supreme Court of Canada Aboriginal Law CONSTITUTIONAL ISSUES Land claims agreements Yukon failing to comply with consultative process set out in development plan Yukon and First Nations entered into final agreements, which set out consultative and collabora- tive process for development of land use plans. After consulta- tion, Yukon was required to ap- prove, reject, or propose modi- fications to part of plan that applied to non-settlement land (s. 11.6.2). Section 11.6.3.2 of final agreements authorizes Yukon to make modifications to final recommended plan ("FRP") that are based on those it proposed earlier in process or respond to changing circumstances. Near end of approval process, after independent Commission had released FRP, Yukon proposed and adopted final plan that made substantial changes to increase access to and development of region. Plaintiffs, including First Nations, brought action against Yukon to quash its plan. Trial judge declared that Yukon did not act in conformity with pro- cess set out in final agreements and quashed Yukon's second consultation and its plan. Trial judge ordered Yukon to re-con- duct its second consultation, and to then either approve FRP, or modify it based on modifica- tions it had previously proposed. Yukon appealed. Yukon Court of Appeal allowed appeal in part and set aside part of trial judge's order that returned parties to second round of consultation. Court of Appeal found that Yu- kon had failed to properly exer- cise its right to propose modifi- cations to recommended plan, and returned parties to stage in process where Yukon could remedy this failure. Plaintiffs ap- pealed. Appeal allowed in part. By assessing adequacy of Yukon's conduct at s. 11.6.2 stage of land use plan approval process, even though First Nations did not seek to have approval quashed on that basis, Court of Appeal im- properly inserted itself into heart of ongoing treaty relationship between Yukon and First Na- tions. Appropriate remedy was to quash Yukon's approval of its plan, thereby returning parties to s. 11.6.3.2 stage of land use plan approval process. It was not open to Court of Appeal to return par- ties to earlier stage. Trial judge's order quashing Yukon's approval of its plan was upheld. Parties were returned to s. 11.6.3.2 stage of land use plan approval pro- cess. It was unnecessary for trial judge to quash second consulta- tion. Trial judge's orders quash- ing second consultation and re- lating to Yukon's conduct going forward was set aside. First Nation of Nacho Nyak Dun v. Yukon (2017), 2017 Car- swellYukon 135, 2017 CarswellY- ukon 136, 2017 SCC 58, 2017 CSC 58, McLachlin C.J.C., Abel- la J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); re- versed (2015), 2015 CarswellYu- kon 81, 2015 YKCA 18, Bauman C.J.Y.T., Smith J.A., and Goepel J.A. (Y.T. C.A.). Federal Court of Appeal Aboriginal Law GOVERNMENT OF ABORIGINAL PEOPLE Councils First Nations election law not complying with Canadian Charter of Rights and Freedoms First Nations held elections for chief and council, which appli- cant contested. First Nations appeal committee directed electoral officer to hold new election after it determined that existing First Nations elec- tion law did not comply with Canadian Charter of Rights and Freedoms. First Nations chief and council passed Band council resolution that rejected appeal committee's direction for new election, finding that appeal committee acted outside its jurisdiction and without au- thority. Applicant unsuccess- fully brought application for judicial review of Band council resolution. Applicant appealed. Appeal dismissed. Council could validly conclude that committee had no jurisdiction to amend election law and call election on terms that it did. Federal Court did not err in its application of standard of review when it concluded that council correctly determined that committee did not have jurisdiction. When First Na- tion chose to be subject to its own customary law, it became responsibility of all its mem- bers to ensure that it was not frozen in time. While most ap- peals simply involved factual determination, there was no doubt that in applying election law, committee could be called upon to determine some ancil- lary legal issues. It followed that, committee having to decide ap- peals before it by applying law, namely election law, also had jurisdiction to decide constitu- tionality of election law. Perry v. Cold Lake First Nations Chief and Council (2018), 2018 CarswellNat 1426, 2018 FCA 73, Johanne Gauthier J.A., Wyman W. Webb J.A., and D.G. Near J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 6458, 2016 FC 1320, Simon Fothergill J. (F.C.). Tax GOODS AND SERVICES TAX Input tax credits Connection between termination of commercial activity and legal services sufficient to permit claim for input tax credits Registrant announced that telecommunications busi- ness would be wound up and received approval for sale of assets. Registrant had share option plan and share appre- ciation rights plan (SAR plan), and between time sale was an- nounced and closing of trans- action, board of registrant cancelled all options and SARs and used valuation of $0.40 per share. Net proceeds from sale were $64 million and payments for cancellation of options and SARs and bonuses were made to former executives. Shareholders of registrant commenced ac- tion against former executives to recover amount they identi- fied as excess payments. Regis- trant claimed input tax credit for legal fees. Tax Court judge determined that on question of whether, on facts agreed to by parties and found by court, registrant would be deemed to have incurred litigation costs in course of commercial activity pursuant to s. 141.1(3) of Excise Tax Act, answer was no. Regis- trant appealed. Appeal allowed. Tax Court judge made palpable and overriding error in find- ing that amounts paid for legal services were "personal" and that there was no connection between litigation and source of funds used to pay former executives. Amounts paid to former executives were inextri- cably linked to sale and there was direct connection between source of funds and litigation. Legal expenses incurred to at- tempt to recover any overpaid remuneration were not person- al. Because s. 141.1(3) was more specific provision that only ap- plied in certain situations, it would override s. 141.01(2) of Act. In both litigation to estab- lish and collect amounts receiv- able and litigation to establish appropriate amount payable for remuneration and collect any overpaid remuneration, under- lying activity which gave rise to litigation was completed before registrant stopped making tax- able supplies. There was con- nection between termination of registrant's commercial activ- ity and legal services acquired in relation to litigation against former executives that would be sufficient to permit registrant to claim input tax credits for GST or HST paid in relation to those legal services. Onenergy Inc. v. Canada (2018), 2018 CarswellNat 1079, 2018 FCA 54, Wyman W. Webb J.A., D.G. Near J.A., and Mary J.L. Gleason J.A. (F.C.A.); re- versed (2016), 2016 CarswellNat 11598, 2016 CarswellNat 5245, 2016 TCC 230, 2016 CCI 230, Campbell J. Miller J. (T.C.C. [General Procedure]). Federal Court Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans Tribunal failing to properly account for evidence that may have had significant impact on decision Pension claimant broke her humerus and could no longer work due to her fibromyalgia, headaches and extreme body pain. General Division of Social 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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