mined that the Application was commenced in time. On appeal, the decision
was overturned and remitted for reconsideration. Upon rehearing the matter, the
Board concluded that the Application had
not been commenced within the time
limit in the Expropriation Act. The Board
refused to exercise its discretion to extend
the limitation period.
HELD: Appeal allowed. The Board’s
finding that there was no service of the
Application was reasonable. The Board’s
reasons implicitly recognized the distinction between knowledge of a claim, and
notice that the claim would be prosecuted. Its finding that there were insufficient facts to conclude that the City had
knowledge that the appellant’s claim was
proceeding in the context of the failure to
serve the claim despite express written
warning was reasonable. However, the
Board’s interpretation of Rule 13 of the
Expropriation Act Rules of Procedure
and Practice was unreasonable. Under
Rule 13, the Board had jurisdiction to
enlarge the time for service. There was no
meaningful prejudice to the City, as the
City had knowledge of the claim. The
time for service of the Amended Application was extended to the date of actual
service. The failure by the appellant to
attend to the proper service of the Application despite a written reminder constituted special circumstances that warranted an order of no costs.
Zahmol Properties Ltd. v. Calgary
(City), [2012] A.J. No. 284, Alberta
Court of Appeal, F.F. Slatter and B.K.
O’Ferrall JJ.A. and A.G. Park J. (ad
hoc), March 20, 2012. Digest No.
3202-010
be the residence of the trustee was based
on two fundamental propositions, both of
which were rejected. The first proposition
was that the trust was not a person like a
corporation, so the central management
and control test was inapplicable to trusts.
The Court found that while a trust was
not a person at common law, it was
deemed to be an individual under the
Income Tax Act. The appellant’s second
argument was that the Act linked a trust
to the trustee and therefore the residence
of the trust had to be the residence of the
trustee. However, although s. 104(1) provided that a reference to a trust in the Act
shall be read to include a reference to a
trustee, the appellant pointed to no provision that would link the trust and the
trustee for the purposes of determining
the residency of the trust. There were
many similarities between a trust and a
corporation that would justify the application of the central management and control test in determining the residence of a
trust. As with corporations, the residence
of a trust should be determined by the
principle that a trust resided for the purposes of the Act where “its real business is
carried on”, which was where the central
management and control of the trust
actually took place. The Tax Court judge
found as a fact that the main beneficiaries
exercised the central management and
control of the trusts in Canada. She found
that the appellant had only a limited role
- to provide administrative services - and
little or no responsibility beyond that.
Therefore, on this test, the trusts had to be
found to be resident in Canada.
Fundy Settlement v. Canada, [2012]
S.C.J. No. 14, Supreme Court of Canada, LeBel, Deschamps, Fish, Abella,
Rothstein, Moldaver and Karakatsanis
JJ., April 12, 2012. Digest No. 3202-011
tained that O’Reilly defamed her by communicating the disputed fact to IHA.
O’Reilly argued that he did not owe a duty
of care to William, that if a duty existed he
had not breached it and that William had
not proven that she suffered damage or
loss as a result of the breach. O’Reilly also
argued that he did not publish the defamatory words claimed by William, but if he
had, those words were protected by qualified privilege.
HELD: Action dismissed. O’Reilly
owed a duty of care to William, which he
had breached by prematurely releasing
the record to IHA. However, William
failed to meet the test of causation. As
long as the investigation record accurately
identified William and generally described
the circumstances of the investigation,
then O’Reilly was obliged to forward the
record check to IHA. Even without the
disputed detail, IHA would have concluded that William was not a suitable
employee. Williams would have suffered
the same loss even if O’Reilly had fulfilled
his duty of care to her. William failed to
show that she suffered damage as a consequence of O’Reilly’s breach. Qualified
privilege applied to O’Reilly’s statements.
O’Reilly had a positive duty to provide to
IHA all the details of the police investigation and his communication with IHA did
not show malice or improper purpose.
William’s claims in negligence and defamation could not succeed.
William v. Canada (Attorney Gen-
eral), [2012] B.C.J. No. 578, British
Columbia Supreme Court, P. Rogers J.,
March 23, 2012. Digest No. 3202-012
TAXATION
FEDERAL INCOME TAX – General
principles – Liability for tax – Capital
gains and losses – Trusts – Residence of.
Appeals by a trustee from the decisions
upholding the Minister’s reassessment.
The appellant was the trustee of two trusts.
The trusts were settled by an individual
resident in St. Vincent and the beneficiaries were residents of Canada. When the
trusts disposed of shares they owned in
Ontario corporations, the purchaser remitted $152 million to the Minister of National
Revenue as withholding tax on account of
Canadian tax from capital gains realized
by the trusts on the sale of the shares. The
appellant sought the return of the withheld amount based on an exemption from
Canadian capital gains tax under the
Agreement Between Canada and Barbados for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion
with Respect to Taxes on Income and on
Capital. Under the treaty, tax would only
be payable in the country in which the
seller was resident. The appellant claimed
that because it was resident in Barbados,
the trusts were resident in Barbados. The
Minister of National Revenue was of the
opinion that the trusts were resident in
Canada and that the withheld tax was
properly payable.
HELD: Appeals dismissed. The principal basis for imposing income tax in Canada is residency. While there was a dearth
of judicial authority on the question of the
residency of a trust, the residency of a
corporation had been determined to be
where its central management and control actually abided. The appellant’s argument that the residence of the trust had to
TORT LAW
NEGLIGENCE – Duty and standard
of care – Causation – Causal connection
– Defamation – Defamatory statements
– What constitutes defamatory words –
Defences – Qualified privilege.
Action by William in negligence and
defamation. William received an offer of
employment from IHA. The offer was contingent upon William providing a satisfactory criminal and police record check.
William signed a consent form authorizing
the RCMP to provide this information.
The form indicated that one category of
information had to be confirmed with the
requester prior to disclosure, and in the
case of a discrepancy, the information was
not to be disclosed. O’Reilly, an information clerk employed by the City of Kelowna,
performed the check of William’s record,
which revealed that William had been
involved in a police incident. O’Reilly
released the check to IHA, who contacted
him for details of the report. As a result of
the record check information, IHA withdrew its offer of employment. William
admitted the overall content of the police
incident, but disputed one detail. William
argued that the words on the consent form
gave rise to a duty of care owed to her,
which O’Reilly breached by failing to contact her before releasing her record check.
William asserted that if O’Reilly had contacted her prior to the report’s release, she
would have informed him of the disputed
detail and O’Reilly would have been
obliged to not release the detail or related
information. In addition, William main-
ABUSE OF LEGAL PROCEDURE
OR PROCESS – Abuse of process – False
arrest or imprisonment – Malicious
arrest – Malicious prosecution.
Action by the plaintiff, Cave, against
certain police officers, complainants, the
RCMP, and the Crown, for damages for
negligent investigation, negligence, false
arrest and imprisonment, abuse of legal
process, malicious prosecution and breach
of his Charter rights. Counterclaim by the
complainants for compensation for dam-
age to their vehicles. The principal com-
plainant, age 26, had a friendly social
relationship with the plaintiff, age 71,
until the plaintiff began offering her
money in exchange for sex. The plaintiff
purchased the complainant a vehicle and
they had four sleepovers. The complain-
ant commenced a romantic relationship
with another man. She contended that the
plaintiff consequently engaged in stalking
and harassing behaviour and alleged that
he damaged their vehicles. As a result, the
plaintiff was arrested by the police three
times in six weeks in 2004. On the final
occasion, he was taken into custody under
the Hospital Act due to a suicidal utter-
ance. The plaintiff faced charges of crim-
inal harassment, property damage and
breach of undertaking until the charges
were withdrawn in 2006 due to witness
unavailability. The plaintiff denied the
complainant’s allegations and commenced
the predicate action for damages. At the
conclusion of the trial, the defendants
filed a motion for non-suit on the basis of
no evidence.
Classifieds
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