Law Times

Page 14 June 11, 2018 • Law Times www.lawtimesnews.com CASELAW Supreme Court of Canada Constitutional Law CONSTITUTIONAL LAW Definitions Section 121 of Constitution Act, 1867 does not impose absolute free trade across Canada Admitted free. Accused trav- elled from New Brunswick to purchase cheaper alcohol, amounting to 15 cases of beer and 3 bottles of hard liquor, in Quebec. Accused was acquit- ted of offence under s. 134(b) of Liquor Control Act which barred possession of liquor, beyond limited quantity, that was not purchased from New Brunswick liquor commission. Trial judge found Supreme Court of Canada precedent held that s. 121 of Constitution Act, 1867, providing that products of any province must be "admit- ted free" into other provinces, did nothing more than protect movement of Canadian goods against interprovincial custom duties or charges. Trial judge found evidence of historical expert established that "admit- ted free" had broader and more comprehensive meaning than "admitted free of duty". Trial judge found nothing in word- ing of provision support infer- ence that meaning of term was restricted to "admitted free of duty" but rather supported op- posite view that it meant free trade, as trade barriers with United States were uppermost in minds of politicians dur- ing constitutional moment and British policy favoured free trade. Trial judge found intent of drafters of Constitution Act, 1867 was to replace loss of free trade American market with free trade Canadian market. Trial judge found statements by Fathers of Confederation were consistent with intent to form strong and harmonious economic union based on free trade, without allowing non- tariff barriers to be imposed. Trial judge found contrary to Crown's expert's view that words "admitted free into" sug- gested border crossing where customs were levied, nothing in words "admitted free into" could possibly lead to very strict inter- pretation confining its meaning to prohibiting customs. Trial judge found robust interpreta- tion of s. 121 of Constitution Act, 1867 would create conf lict with exercise of provincial pow- ers and would dismantle regime in place involving governments' multitude of restrictive mea- sures and policies imposing in- terprovincial trade barriers. Tri- al judge found important con- sideration of original purpose of provision at issue should not be displaced merely by notions of what amounted to request for accommodation based on long- standing misinterpretation of intent of Fathers of Confedera- tion. Trial judge found narrow and strict interpretation placed upon s. 121 of Constitution Act, 1867 in Supreme Court of Can- ada was unwarranted and un- founded, and it had shaped all subsequent cases dealing with provision. Section 134(b) of Act constituted trade barrier violat- ing s. 121 of Constitution Act, 1867 and was of no force and effect as against accused. Crown appealed. Appeal dismissed. Section 121 of Constitution Act, 1867 does not impose absolute free trade across Canada, and does not prohibit governments from adopting laws and regula- tory schemes directed to other goals that have incidental ef- fects on passage of goods across provincial borders. Federalism principle and purposive ap- proach where provinces could legislate within their jurisdic- tion even where such laws may incidentally limit passage of goods over provincial borders. Provincial law functioned like tariff at extreme end of spec- trum, however, text and effects were aligned and suggested pri- mary purpose of s. 134(b) of Act was not to impede trade, rather to restrict access to any non- corporation liquor. Broader legislative scheme involved New Brunswick's capacity to regulate how liquor is managed within province and enable public su- pervision of production, move- ment, sale, and use of alcohol within New Brunswick. R. v. Comeau (2018), 2018 CarswellNB 124, 2018 Carswell- NB 125, 2018 SCC 15, 2018 CSC 15, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 Carswell- NB 445, 2016 CarswellNB 446, M.E.L. Larlee J.A. (N.B. C.A.). Federal Court of Appeal Public Law SOCIAL PROGRAMS Employment insurance Source of payment not pertinent for purposes of s. 36(9) of Employment Insurance Regulations Employee's appeal to Appeal Division of Social Security Tri- bunal was dismissed. Employee applied for judicial review to Federal Court of Appeal. Ap- plication dismissed. Decision of Appeal Division of Social Se- curity Tribunal was reasonable. Source of payment not perti- nent for purposes of s. 36(9) of Employment Insurance Regu- lations, only that it was paid by reason of layoff. Indemnity be- came payable as of date of layoff when employee became unem- ployed. Champagne c. Canada (Procureur général) (2018), 2018 CarswellNat 1914, 2018 CAF 79, Nadon J.A., Richard Boivin J.A., and de Montigny J.A. (F.C.A.). Tax INCOME TAX Administration and enforcement Court had no authority to dispense with compliance with three-judge requirement Taxpayers made request for ad- journment of proceeding in Tax Court because they claimed that their representative had only be- come aware of trial date recently – Hearing coordinator refused request for adjournment. Tax- payers asked Associate Chief Justice of Tax to reconsider re- fusal of adjournment. In Fed- eral Court of Appeal, taxpay- ers brought motion to appeal Tax Court's decision to refuse request for postponement and sought order under R. 55 of Fed- eral Courts Rules that dispensed with R. 341, 343 and 348 so that it could be heard by one judge, and order under R. 8 expediting hearing of appeal. MOTION DISMISSED. Court had no au- thority to dispense with compli- ance with three-judge require- ment established by Parliament. It was inappropriate to dispense with Rules and expedite hear- ing as taxpayers proposed, as to proceed into hearing as pro- posed by taxpayers would not be orderly or fair to parties or court. 6260268 Canada Inc. v. Construction GMR Inc. (2018), 2018 CarswellNat 1412, 2018 FCA 70, J.B. Laskin J.A. (F.C.A.). Tax Court of Canada Tax INCOME TAX Administration and enforcement No reason to second guess taxpayer's fair market value figure since taxpayer was realtor Taxpayer's son owned property and rented it to occupants who used it as marijuana grow-op. Taxpayer funded renovations to house in amount of $22,353 and allowed her daughter and grand- child to live on property. In year of transfer to taxpayer, city issued property tax notice for taxes due and showed assessment value of $136,700 for property. Property was transferred to taxpayer at time when son was tax debtor who owed $42,213. Minister as- sessed taxpayer under s. 160 of Income Tax Act in amount of $42,213 on basis that fair mar- ket value of property at date of transfer was $150,000 and con- sideration received was $104,000, including mortgage assumed, insurance and property man- agement fees, but not including renovation expenses. Taxpayer appealed. Appeal allowed. Mat- ter was remitted to Minister for reconsideration. Fair market value of property was $150,000, as per taxpayer's signed statement on date of transfer, and there was no reason to second guess figure since taxpayer was realtor. Reno- vation expenses of $22,353 should be added to consideration figure on same basis that Minister al- lowed deemed property manage- ment fees as recognition of tax- payer's continuing maintenance and repair of residential structure as necessary. Deemed property management amount allowed by Minister should be reduced by 50 per cent in light of daughter and grandchild having lived on prop- 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. This is more than a phone book. 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