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June 11, 2018

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Law Times • June 11, 2018 Page 15 erty during much of renovation period. Thompson v. The Queen (2018), 2018 CarswellNat 1277, 2018 TCC 64, B. Russell J. (T.C.C. [General Procedure]). INCOME TAX Tax credits Taxpayer's donation not constituting gift in absence of donative intent Taxpayer's brother was co-found- er of charitable organization GI. Taxpayer paid $30,000 US, equiv- alent to $46,667 Cdn, to organi- zation in exchange for charitable donation receipt. Taxpayer gave amount in two payments, funded by loan from taxpayer's father-in- law. Several months later, deposit was made into same account that amounts were paid out of. Tax- payer claimed tax credit deduc- tions for charitable donation over four years. Minister of National Revenue disallowed deduction on basis that amount did not consti- tute gift within meaning of s. 118.1 of Income Tax Act. Taxpayer ap- pealed. Appeal dismissed. Tax- payer's evidence was implausible and improbable, given unusually large amount, fact that taxpayer did not claim any charitable do- nation tax credit for previous 12 years, fact that amount paid was 75 per cent of family's net income, taxpayer's lack of financial where- withal and implausibility that he would borrow to donate, taxpay- er's lack of due diligence in failing to independently inquire into or- ganization's activities and finan- cial statements, failure to follow up on what organization did with amount, and inability to explain deposit made into account. Tax- payer gave amount to organiza- tion with intent and expectation of receiving tax credit and antici- pated return of amount. Taxpayer did not prove that he paid amount with donative intent, so amount did not constitute gift. Taxpayer was not entitled to tax credit de- ductions. Goheen v. The Queen (2018), 2018 CarswellNat 1276, 2018 TCC 62, K. Lyons J. (T.C.C. [General Procedure]). Ontario Civil Cases Business Associations SPECIFIC MATTERS OF CORPORATE ORGANIZATION Shareholders Fairest valuation date to value common shares was date of reasons on oppression application In action and oppression applica- tion, court considered nature of agreement between AC and CB relating to property CB owned through predecessor to 500 Ltd., which he wanted to develop. As result of agreement found to have existed, CB and AC's company C Corp. became shareholders of 500 Ltd.. It was found that AC, through C Corp., unfairly preju- diced CB and disregarded his interests in connection with 500 Ltd.. Oppressive conduct consist- ed of C Corp.'s failure to discharge existing mortgage it had assumed, improper registration of second mortgage, and failure to fund half of ongoing costs of 500 Ltd.. It was ordered, inter alia, that C Corp. sell its shares in 500 Ltd. to CB. Submissions were made on out- standing issues, including how to value C Corp.'s common shares to determine sale price. It was determined that preferable ap- proach was to direct reference to master to determine price for sale of C Corp.'s shares to CB. It was premature to determine which valuation methodology was ap- propriate. Master was to take all necessary steps and make all nec- essary inquiries. Fairest valuation date to value common shares was date of reasons on oppression ap- plication; it ref lected AC's ongo- ing investment into corporation and did not punish him for CB's failure to advance project. Bitton v. Checroune et al (2017), 2017 CarswellOnt 15276, 2017 ONSC 5542, J.T. Akbarali J. (Ont. S.C.J.); additional reasons (2017), 2017 CarswellOnt 6694, 2017 ONSC 2434, J.T. Akbarali J. (Ont. S.C.J.). Civil Practice and Procedure DISCOVERY Discovery of documents Master misapprehended relief being sought with respect to issue of delay Subcontractor brought motion for order requiring contractor and principal to deliver further and better affidavit of documents. Motion dismissed but Master did not deal with issue of whether other defendants to produce oth- er documents relevant to issue of delay. Subcontractor appealed. Appeal allowed. Proposed fresh evidence comprising of emails was produced by municipality in companion third party claim. Had fresh evidence been avail- able and considered by Master more likely that settlement agree- ment would have been ordered to be produced. Evidence could not have been obtained by exercise of reasonable diligence as subcon- tractor had no access to settle- ment. All settlement documen- tation between defendants to be produced. Master misapprehend- ed relief being sought with respect to issue of delay. Defendants to deliver further and better sworn affidavit of documents forthwith that including documentation relevant to any alleged delay to the project. Accel Electrical v. City of Brampton (2018), 2018 Carswel- lOnt 6805, 2018 ONSC 2523, Ferguson J. (Ont. S.C.J.); varied (2017), 2017 CarswellOnt 18008, 2017 ONSC 6708, Master D.E. Short (Ont. S.C.J.). DISPOSITION WITHOUT TRIAL Dismissal for delay Rule 48.14 did not take precedence over Rule 24.01, nor did it oust jurisdiction of court Property owner operated power generation facility constructed by contractor in 1995-1996. Guaran- tor had guaranteed contractor's performance, and two sureties had issued performance bond. Two heat recovery steam gen- erators supplied by subcontrac- tor developed cracks by 2000. Owner commenced action in 2005 against contractor, guaran- tor, and sureties for damages for negligence and breach of war- ranty. Contractor and guarantor successfully brought motion for summary judgment dismissing claims relating to engineering services as statute-barred, with costs to be fixed by motion judge C. Proceeding became dormant without any costs determination being made by motion judge C, or by motion judge J relating to subsequent motion. Contractor, guarantor, and sureties success- fully brought motion for order dismissing action for delay and for costs, including in relation to prior motions. Action was dismissed pursuant to R. 24.01 and R. 48.14(1) of Rules of Civil Procedure and court's inherent jurisdiction, and parties were to make costs submissions dealing with outstanding costs issues. IF Power Corp. appealed. Appeal dismissed. Rule 48.14 did not take precedence over Rule 24.01, nor did it oust jurisdiction of court from dealing with any action that was subject to dismissal by registrar under Rule 48.14. Given that registrar had not dismissed IF Power Corp.'s action under Rule 48.14, it was entirely open to respondents to proceed with mo- tion under Rule 24.01 and for mo- tion judge to exercise jurisdiction in accordance with that rule. Iroquois Falls Power Corp. v. Jacobs Canada Inc. (2018), 2018 CarswellOnt 6732, 2018 ONCA 412, J. MacFarland J.A., H.S. La- Forme J.A., and Gloria Epstein J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 15055, 2017 ONSC 5515, M.D. Faieta J. (Ont. S.C.J.). (Ont. C.A.); leave to appeal refused (2017), 2017 CarswellOnt 15974, 2017 ONSC 6187, Mario D. Faieta J. (Ont. S.C.J.). DISPOSITION WITHOUT TRIAL Settlement Motion to set aside settlement dismissed where settlement entered into by authorized person Parties were not-for-profit chari- table corporations that operated Sikh Gurdwaras (Sikh temples). Plaintiff temple, SGNSCB, com- menced action against two defen- dant temples, RSS and SSRC after defaulting on repayment of loan. In 2015, parties reached settle- ment regarding repayment which was then converted into court order obtained on consent in Feb- ruary 2016. In November 2016, SSRC was unsuccessful on its mo- tion to set aside settlement as mo- tion judge concluded settlement was entered into by authorized Director of SSRC. Motion judge also pointed to fact that SSRC had legal representation throughout proceedings. Motion judge con- cluded there was no basis for her to exercise discretion as it was clear SSRC had borrowed monies in question and that settlement, by which most of monies were to be repaid over time, was rea- sonable. SSRC appealed. Appeal dismissed. Conclusions reached by motion judge were entitled to deference. As SSRC failed to demonstrate motion judge made palpable and overriding error, ap- pellate interference was not avail- able. Ample evidence supported conclusion that SSRC's Director had authority of Board of Direc- tor's to instruct lawyer to enter settlement agreement and failure to find evidence of authority was not fatal. Further evidence sup- porting discretion to not interfere was that SGNSCB agreed to take slight compromise in amount owed to effect settlement. There was nothing improvident in set- tlement. had borrowed monies in question and that settlement, by which most of monies were to be repaid over time, was reasonable. Sri Guru Nanak Sikh Cen- tre Brampton v. Rexdale Singh Sabha Religious Centre (2018), 2018 CarswellOnt 7613, 2018 ONCA 459, P. Lauwers J.A., M.L. Benotto J.A., and I.V.B. Nord- heimer J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 16291, 2017 ONSC 6252, Petersen J. (Ont. S.C.J.). LIMITATION OF ACTIONS Real property Father and son had not dispossessed non-parties or their businesses of possession Applicant couple and respon- dents who were father and son, were next-door neighbours. Couple's predecessor in title shared use of right of way, over laneway. Father's company ac- quired land in two parcels, and conveyed land to father. Fa- ther installed storage container against south wall of garage, on patch of land that couple claimed belonged to them. Couple applied for injunction requiring father to remove stor- age container. Father cross- applied for declaration that he had acquired ownership of land, by adverse possession. Applica- tion and cross-application both dismissed. Father's only claim to disputed land was through adverse possession. Others had made use of storage container, during claimed adverse posses- sion period. Father and son had not dispossessed non-parties, or their business, of possession. Fa- ther did not intend this dispos- session. Maas v. Oakes (2017), 2017 CarswellOnt 15172, 2017 ONSC 5568, Price J. (Ont. S.C.J.). Estates and Trusts ESTATES Actions involving personal representatives Court had power to make vesting order Testator died in 1990 and left three adjoining properties to his heirs. Executors settled estate wrongly believing that Planning Act prohibited transfer by Will of properties to separate beneficia- ries. Committee of Adjustment refused technical severance to re-establish three separate lots. Beneficiaries who held interests as tenants in common applied for vesting order re-establishing property as separate properties. Application dismissed without prejudice. Proposed severance ap- peared from limited material filed to contravene Act. Court had the power to make vesting order but court should use caution in exer- cising its discretion where order would entail breach of Act. Court had insufficient information in application understand why city found proposed severance of title to re-establish three lots would contravene Act. If application re- newed city to be given notice and applicants to provide sufficient information for Court to under- stand city's position. Nobrega and Elder v. Trust- ees of the Estate of M. Gasp- arovich (2018), 2018 CarswellOnt 7532, 2018 ONSC 2901, Heather McArthur J. (Ont. S.C.J.). Evidence PRIVILEGE Privileged communications Plaintiff 's counsel abandoned any opposition to argument that affidavit was waiver of privilege Plaintiff 's solicitor filed affidavit in support of motion selectively disclosing privileged informa- tion. On defendant's motion Master ordered disclosure of plaintiff 's client file excepting docket entries and material sub- ject to litigation privilege. Plain- tiff appealed. Appeal dismissed. Plaintiff 's counsel, abandoned, with prejudice, any opposition to defendants' argument that affida- vit was waiver of privilege. Plain- tiff should not have appealed something it conceded. Master was correct in excluding dockets which represented overall scope of firm's retainer by plaintiff. Plaintiff appealed on ground that defendant's motion was prema- ture. No basis to challenge Mas- ter's hearing motion when he did as timing was directed by judge in Civil Practice Court. Court lacked jurisdiction to review rul- ing made by fellow judge of Su- perior Court of Justice. Master awarded costs of $9,500 reject- ing claim for partial indemnity costs of $26,120.26. Master mis- takenly thought amount sought was for proceeding on consent under Simplified Rules. Entire action was for return of deposit of $45,861.52. As proportional- ity was primary concern, costs awarded were reasonable. Canadian Appliance Source Inc. v. Inc. (2018), 2018 CarswellOnt 7391, 2018 ONSC 2960, E.M. Morgan J. (Ont. S.C.J.); affirmed (2017), 2017 CarswellOnt 12967, 2017 ONSC 4959, Master M.P. McGraw (Ont. S.C.J.). CASELAW

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