Law Times

Law Times • June 18, 2018 Page 13 www.lawtimesnews.com Supreme Court of Canada Conflict of Laws FAMILY LAW Children Hybrid approach to determining habitual residence under Hague Convention should be adopted Parties married in Ontario, moved to Germany where they acquired permanent residence status and had two children. Parties agreed that mother would take children to On- tario where they would attend school until August 2014. Fa- ther commenced application under Convention on the Civil Aspects of International Child Abduction, 1980 (Hague Con- vention) and original consent agreement lapsed. Application judge requested involvement of Office of Children's Lawyer (OCL) and ordered return of children to Germany. On ap- peal, it was found that children's habitual residence had changed. Father's appeal was allowed and order of application judge was restored. OCL applied for leave to appeal. Children were returned to Germany where custody was granted to mother and children were returned to Canada. Although events had rendered appeal moot, issues raised in appeal were important and law required clarification. Hybrid approach to determin- ing habitual residence under Article 3 of Hague Convention and non-technical approach to considering child's objection to removal under Article 13(2) should be adopted. Principle of harmonization supports hybrid approach and hybrid approach best conforms to text, structure and purpose of Hague Conven- tion. Office of the Children's Law- yer v. Balev (2018), 2018 Car- swellOnt 6096, 2018 Carswel- lOnt 6097, 2018 SCC 16, 2018 CSC 16, 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.); af- firmed (2016), 2016 CarswellOnt 14331, 2016 ONCA 680, Laskin J.A., Robert J. Sharpe J.A., and B.W. Miller J.A. (Ont. C.A.). Religious Institutions JURISDICTION OF CIVIL AND CRIMINAL COURTS Miscellaneous Judicial review of decisions of voluntary associations, including religious groups, limited to public decision makers Applicant, member of Jehovah's Witness congregation, was dis- fellowshipped by congregation's Judicial Committee. Applicant filed originating application for judicial review pursuant to R. 3.15 of Alberta Rules of Court seeking order of certiorari quashing decision on basis that it was procedurally unfair. Court of Queen's Bench and majority of Court of Appeal concluded that courts had jurisdiction to consider merits of application. Congregation appealed to Su- preme Court of Canada. Appeal allowed. Application quashed. Review of decisions of voluntary associations, including religious groups, for procedural fairness is limited. Judicial review is limited to public decision makers, which Judicial Committee is not. Judi- cial Committee was not exercis- ing statutory authority. There is no free-standing right to proce- dural fairness absent underly- ing legal right. Matters in issue fell outside court's jurisdiction. Ecclesiastical issues raised by ap- plicant were not justiciable. Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall (2018), 2018 CarswellAlta 1044, 2018 CarswellAlta 1045, 2018 SCC 26, 2018 CSC 26, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gas- con J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellAlta 1669, 2016 ABCA 255, Marina Paperny J.A., Patricia Rowbotham J.A., and Thomas W. Wakeling J.A. (Alta. C.A.). Federal Court of Appeal Environmental Law CONSTITUTIONAL ISSUES General principles Consultation process resulted in reasonable efforts to inform, consult and accommodate as required by Crown's fiduciary obligations Applicant B Nation requested inter alia orders declaring that Canada breached constitutional and common law obligations to consult and accommodate B Nation, that Crown improperly delegated its duty to assess proj- ect's effects on environment and on B Nation's rights protected under subsection 35(1) of Con- stitution Act, and that Gover- nor in Council ("GIC") erred in law in issuing Order in Council ("OIC") as it did not comply with National Energy Board Act ("NEB Act") and was oth- erwise unreasonable for failing to provide reasons or sufficient reasons, and for failing to pub- lish Order in Canada Gazette. B Nation brought application for judicial review of OIC made by GIC, which directed National Energy Board ("NEB") to issue environmental assessment deci- sion statement concerning 2017 NGTL System Expansion Proj- ect in northern Alberta, and to issue Certificate of Public Con- venience and Necessity ("Certif- icate") authorizing construction and operation of project. Appli- cation dismissed. Authorization was subject to Certificate Con- ditions contained in conditions. NGTL made a number of com- mitments to protect Caribou and Caribou habitat, that were enforceable under condition. B Nation did not proactively par- ticipate in post-NEB consulta- tion process, did not specifically raise the issue of project's poten- tial impact on Caribou at either meeting with o Canada's Major Project Management Office ("MPMO"), and did not avail itself of opportunity to provide comments on draft Crown Consultation and Accommoda- tion Report ("CCAR"). B Nation failed to establish that concerns were not heard and accommo- dated. When viewed as a whole, consultation process resulted in reasonable efforts to inform, consult and accommodate as required by Crown's fiduciary obligations. Bigstone Cree Nation v. Nova Gas Transmission Ltd. (2018), 2018 CarswellNat 2148, 2018 FCA 89, Johanne Gauthier J.A., D.G. Near J.A., and Yves de Montigny J.A. (F.C.A.). Tax INCOME TAX Administration and enforcement Pleadings relevant to whether penalties for gross negligence were properly assessed During 2010 and 2011 taxation years, taxpayer carried on busi- ness of purchasing and import- ing cheese and other products from U.S. and reselling them to restaurants in Canada. Taxpay- er did not report any income from his business activities for his 2010 and 2011 taxation years. Pursuant to reassessment, Minister included in taxpayer's income amount of $23,916 for 2010 taxation year and $84,216 for his 2011 taxation year as unreported income from busi- ness. Minister levied penalties under s. 163(2) of Income Tax Act. Taxpayer admitted that he operated business in 2010 and 2011 taxation years but con- tested quantum of amounts in- cluded in his income and pen- alties levied under s. 163(2) of Act. Taxpayer's motion to strike certain paragraphs of reply to notice of appeal was allowed in part. Taxpayer applied to set aside order allowing his motion to strike certain paragraphs of reply to notice of appeal only in part. Appeal dismissed. There was no basis for interfer- ing with order of Tax Court of Canada. Tax Court of Canada applied correct legal principles and did not commit palpable and overriding errors in find- ing that paragraphs in ques- tion were relevant to issues that Tax Court of Canada would be required to determine on ap- peal. Given that convictions had been entered, it was open to Tax Court of Canada to find that impugned pleadings were relevant to both amount of tax- payer's unreported income and to issue of whether penalties for gross negligence were properly assessed. Heron v. Canada (2017), 2017 CarswellNat 6588, 2017 CarswellNat 8750, 2017 FCA 229, 2017 CAF 229, Rennie J.A., Mary J.L. Gleason J.A., and Laskin J.A. (F.C.A.); affirmed (2017), 2017 CarswellNat 1982, 2017 TCC 71, Johanne D'Auray J. (T.C.C. [General Procedure]). 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 This is more than a phone book. 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