provide a copy of the notice of dismissal to
the plaintiffs. In December 2007, Webster
commenced a new action against Inter-
national News alleging that the disclosure
document did not comply with the Act. In
February 2010, the personal plaintiff
retained another lawyer to assume carriage
of the action and learned that claims were
missing and that his statutory rescission
rights had not been protected. He com-
menced the predicate action in July 2011.
Webster was noted in default.
HELD: Action allowed. The disclosure
document provided by International News
was deficient in several fundamental ways.
Webster failed to exercise the professional
care and attention required to protect his
clients’ interests from the time he was
retained in October of 2004. His profes-
sional negligence deprived his clients of
statutory rights of rescission and damages
that were otherwise available. Had Webster
properly advised the plaintiffs of the rescis-
sion rights, he could have claimed losses
under the Act for the failure by Inter-
national News to deliver required disclo-
sure within two years of entering the fran-
chise agreement. Years of litigation and
expense could have been avoided. The
plaintiffs were awarded judgment of
$188,646, representing the amount payable
had a timely rescission been implemented.
2032151 Ontario Inc. v. Webster,
[2012] O.J. No. 1221, Ontario Superior
Court of Justice, B.P. O’Marra J., March
21, 2012. Digest No. 3201-009
ings of guilt were based, as no analysis was
conducted on the issue of admissibility
under the best evidence rule. The Crown
did not account for the failure to produce
original documents, nor justified the recep-
tion of copies of the various documents
pursuant to the Ontario Evidence Act.
The remainder of the admissible evidence
was not capable of proving the essential
elements of any of the offences, as the
evidence of the investigator was confined
to the documents, and the evidence of the
principal did not include any firsthand
knowledge of the appellant’s dealings
with the Warranty Program. The appro-
priate result was to set aside the convic-
tions and enter acquittals in their place.
Tarion Warranty Corp. v. Boros,
[2012] O.J. No. 1297, Ontario Court of
Justice, D.A. Fairgrieve J., March 13,
2012. Digest No. 3201-010
Nation historically fished commercially in
the lakes abutting or near to the reserve. The
packing stations were run by the Co-op, fish-
ers kept their boats on the reserve, and
embarked from the reserve to fish. In addi-
tion, income from employment insurance
benefits was also situated on a reserve in the
years in question, largely because that was
the situs of the qualifying activities.
Canada v. Robertson, [2012] F.C.J.
No. 358, Federal Court of Appeal, Win-
nipeg, Manitoba, Evans, Pelletier and
Layden-Stevenson JJ.A., March 20,
2012. Digest No. 3201-011
TORT LAW
TAXATION
REAL PROPERTY LAW
NEW HOME WARRANTY PLANS –
Proceedings – Practice and procedure –
Evidence.
Appeal by Boros from convictions and
sentences in respect of three offences under
the Ontario New Home Warranties Plan.
The appellant was charged with con-
structing a new home without being regis-
tered as a builder, commencing construc-
tion without notifying the Warranty
Corporation and paying the prescribed fee,
and knowingly furnishing false informa-
tion, another builder’s registration number,
in the application for enrolment of the new
home under the Plan. The trial proceeded
on an ex parte basis. An investigator for the
Warranty Corporation testified for the
Crown. The investigator referred to four
exhibits, a two-page Permit Application
and Declaration of Applicant for Building
Permit, a photocopy of the Enrolment of
Freehold Home form, a photocopy of the
Corporation Profile Report showing that
the builder registration number used was
not associated with the appellant, and a
photocopy of a letter from the Warranty
Plan indicating that the appellant’s cheque
was returned due to insufficient funds. The
investigator also stated that a computer
check revealed that the appellant was not a
registered builder. The investigator stated
that he spoke to the principal of the num-
bered company whose registration number
was submitted by the appellant and con-
cluded that the appellant had provided
incorrect information. The principal of the
numbered company testified to the same
effect. The appellant was convicted and
fined $20,000 on each count. He appealed
on the basis that, among other things, the
verdicts were unreasonable and
unsupported by the evidence.
HELD: Appeal allowed. The Justice of
the Peace erred in law in admitting the
documentary evidence on which the find-
FEDERAL INCOME TAX – Business
and property income – Fishing income
– Exemptions – Indians – Income situ-
ated on a reserve.
Appeal by the Crown from a Tax Court
of Canada decision allowing the appeals by
Robertson and Saunders from assess-
ments of income tax liability. Robertson
and Saunders were status Indians and
members of the same First Nation. Rob-
ertson lived on-reserve and Saunders lived
nearby, but off-reserve. The appellants
were self-employed commercial fishers
who owned licences and received quotas
from a Fishermen’s Co-operative located
on-reserve. The Co-op purchased fish from
its members as the agent of the Freshwater
Fish Marketing Corporation. Freshwater
sold the catch to customers located off-
reserve. The Co-op paid the fishers weekly,
on the basis of the receipts sent to it by the
packing stations. The Co-op made the pay-
ments from funds provided by Freshwater,
which paid money into the Co-op’s bank
account in trust. Fishers collected the pay-
ment for their weekly catch from the Co-
op’s administration office on the reserve.
The Co-op was active in every aspect of
commercial fishing by members of the
First Nation, from assisting fishers to get
started in the business, to acting on their
behalf when dealing with Freshwater. The
lakes fished were off-reserve and were
accessed from the reserve by boats kept
on-reserve. Fishing camps and packing
stations were located off-reserve. The Tax
Court found that the Minister wrongly
included business income earned from
commercial fishing and employment
insurance benefits received by Robertson
and Saunders. The judge found that the
income was situated on-reserve and was
thus exempt from income tax by virtue of
s. 87 of the Indian Act.
HELD: Appeals dismissed. The weight
attached to the integral nature of commercial
fishing to life on the reserve was inconsistent
with the jurisprudence. Nonetheless, the Tax
Court reached the proper result. The busi-
ness income earned by Robertson and Saun-
ders from commercial fishing was situated
on the reserve and was therefore not subject
to income tax. The role played by the Co-op,
an on-reserve institution, in the fishing busi-
ness of its members, nearly all of whom lived
on the reserve, firmly anchored their busi-
ness activities to the reserve. The fact that
Robertson and Saunders caught and deliv-
ered their fish off-reserve did not locate their
business off-reserve. Members of the First
DEFAMATION – Defamatory state-
ments – Interpretation of defamatory
words – Practice – Grounds for appeal
of verdict – Libel.
Appeal by the plaintiff from the dismissal
of her libel action. The appellant and her
husband were the principals of an immigra-
tion consulting firm. The corporate respond-
ent operated a Korean-language newspaper
for which the individual respondent was a
reporter. In February 2007, the newspaper
published the first of a series of articles about
South Korean truck drivers who had been
induced by Park, the principal of a company
called ULSC, to come to Canada to work.
The company retained the plaintiff to assist
in finding a trucking firm that would fulfill
the requirements of the foreign worker pro-
gram. She found a trucking company that
expressed an interest in hiring the Korean
drivers and she obtained a positive labour
market opinion. However, none of the truck
drivers were hired, as their English profi-
ciency was considered inadequate. Four sub-
sequent articles were published. Two years
later, the defendants published a correction
in which they indicated that the appellant
did not act for the truck drivers and had
acted solely for ULSC and that she did not
sign any employment contracts between the
truck drivers and the trucking company. The
appellant commenced a libel action, alleging
that the articles left the impression that she
was instrumental in the scheme to take
advantage of the vulnerable Korean truck
drivers and that she was guilty of fraud and
forgery. The trial judge ruled that the words
of the article were capable of bearing the
defamatory meaning alleged and he charged
the jury with deciding whether a reasonable
person would understand the words to con-
vey a meaning that discredited the appel-
lant. The jury found that the newspaper
articles did not defame the appellant. The
appellant conceded that the trial judge prop-
erly instructed the jury, but sought to have
the jury’s verdict overturned as perverse.
Classifieds
MISSING HEIRS
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DURHAM REGIONAL
COURTHOUSE LOCATION
59 Division St., Oshawa. Renovated
Century Home directly across from
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Lease – call 905-725-8711.
YONGE/DUNDAS, TORONTO
single or group of unfurnished
offices available for rent. Features
lots of glass, hardwood, conference
rooms, in-house library. Furnished
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cabinets. Shared amenities. Contact
Margot Biermann 416-979-6427.
CENTRAL ALBERTA LAW
FOUR ROBERT SPECK
PARK WAY, MISS.
ASSOCIATE
Law office looking for an Associate
to share works in Real Estates.
Interested Lawyer please fax
Resume to 416-398-8358 or by
email to ttnlawyers@gmail.com
To
place your
CLASSIFIED AD
NORTH WEST TORONTO
1 or 2 offices available – newly
renovated – referrals from 9 lawyers
sharing space. Shared Reception
service and 2 board rooms.
Telephone equipment, internet and
furniture, available if required. Email
northtorontolawyer@gmail.com
FAMILY LAWYER
wanted for Barrie office of 4 city firm.
Generous fee split. Please email
resume to lawopportunities@live.ca
Please Contact: Jacqueline
D’Souza
905-415-5801;
1-800-668-6481 ex. 801
classified@lexisnexis.ca
OTTAWA LITIGATION
ASSOCIATE
www.ottawalawfirm.ca has an
immediate opening for a junior
lawyer (1-3 years). 2012 Calls
welcome. Email complete
application in confidence to
richard@ottawalawfirm.ca
