The Lawyers Weekly - May 25, 2012

Pattison framed its need for the sealing order
on the basis that disclosure would imperil its
commercial interests. The only evidence in
support of this assertion was a statement in
an affidavit that the information under seal
was “highly sensitive and confidential and
can be used by Pattison Outdoor’s
competitors, advertisers and land owners to
Pattison Outdoor’s disadvantage.” This
evidence fell short of allowing Pattison to get
past the first branch of the Mentuck test.
There was no indication of how the
information could be used against Pattison’s
business or how great a risk disclosure would
present. Absent a supportable finding
sufficient to pass the first branch of the test,
the order could not have been made under
the controlling jurisprudence.
Pattison Outdoor Advertising LP v.
Toronto (City), [2012] O.J. No. 1398,
Ontario Court of Appeal, K.N. Feldman,
R.J. Sharpe and G.J. Epstein JJ.A.,
April 2, 2012. Digest No. 3204-012
months before the wife became joint owner
of the property.
Karafiat v. Webb, [2012] A.J. No. 377,
Alberta Court of Appeal, R.L. Berger, F.F.
Slatter and J.D.B. McDonald JJ. A., 2012.,
April 17, 2012. Digest No. 3204-013
TAXATION
they pay in the course of making exempt
supplies. In accordance with the Act, the City
had applied for and received rebates of a
portion of the GST that it had paid on the
facilities for the municipal transit service
supply. There was no separate, non-exempt
supply to the Province, and accordingly, ITCs
for GST paid in the course of acquiring and
constructing the municipal transit facilities
were not available to the City.
Calgary (City) v. Canada, [2012]
S.C. J. No. 20, Supreme Court of Canada,
McLachlin C.J. and LeBel, Deschamps,
Rothstein, Cromwell, Moldaver and
Karakatsanis JJ., April 26, 2012. Digest
No. 3204-014
WORKPLACE,
HEALTH, SAFETY &
COMPENSATION LAW
REAL PROPERTY LAW

INTERESTS IN LAND – Homesteads
– Homestead legislation – Dower rights
of non-owning spouse – Release of
dower rights.
Appeal by Karafiat from a trial judgment
finding that his interest registered against the
respondents’ home was not valid and ordering
that his caveat be discharged from title. The
appellant was a former employee of the
respondents. He was owed wages and
severance pay. Pursuant to an agreement with
the appellant, the respondent husband signed
a promissory note in the appellant’s favour
and agreed that the appellant could file a
caveat against the matrimonial home
registered in the husband’s name. The
respondent wife was not informed of the
arrangement and did not sign off on her
dower rights. The respondents then had the
home transferred to their names jointly and
asked the appellant to postpone his interest
so that they could obtain mortgage financing.
The appellant agreed. The respondents then
filed for bankruptcy and the mortgagee
foreclosed. The respondents argued that
because the wife never consented to the
arrangement between the husband and the
appellant and at no time expressly
acknowledged the requirements set out in
the Dower Act, the appellant was not entitled
to his claim as a secured creditor in the
respondents’ respective bankruptcies.
HELD: Appeal dismissed. The appellant
failed to establish the wife’s consent to the
release of her dower rights. There was no
evidence in the record establishing that the
wife took an active role in either securing the
mortgage financing or engaging in the
postponement of the appellant’s alleged
interests. There was no evidence that she
turned her mind to her dower rights or that
she consented to their release in connection
with the transaction with the appellant. The
failure to properly correct the initial omission
to address her dower rights was not cured by
either the transfer to joint tenancy or the
mortgage disposition. The wife’s dower right
did not cease when title was transferred to
herself and the husband jointly. The doctrine
of merger would have the effect of
extinguishing the wife’s dower rights with
respect to her undivided one-half interest in
the title, but her dower rights would continue
to exist in what was now the husband’s
undivided one-half interest. There was no
innocent third party purchaser for value
without notice in this case. The appellant
entered into his dealings with the husband
GOODS AND SERVICES TAX –
Interpretation – Service – Supply –
Agreement as supply – Single vs. multiple
supply – Supply by government and
municipalities – Taxable supply –
Exempt supplies – Public sector bodies
– Input tax credits.
Appeal by the City of Calgary (City) from
the judgment of the Federal Court of Appeal,
which confirmed the Minister of National
Revenue’s decision to deny the City’s claim for
input tax credits. The City acquired and
constructed transit infrastructure, facilities,
and equipment for the use of the Calgary
public as part of the municipal transit system
pursuant to the City Transportation Act. The
City paid Goods and Services Tax (GST) in
respect of its purchases for the acquisition
and construction of the transit facilities.
While the provision of a “municipal transit
service” was an exempt supply under the
terms of the Excise Tax Act (Act), the City
took the position that the construction of the
transit facilities (in contrast to their operation)
was a separate, non-exempt supply to the
Province of Alberta (Province), pursuant to
its contractual obligations to the Province
under the funding agreements, for which the
Province paid consideration. It therefore
claimed input tax credits (ITC) in respect of
the purchases made for the construction of
the transit facilities. The Minister of National
Revenue rejected the City’s position. The Tax
Court of Canada agreed with the City, allowing
the appeal and remitting the matter to the
Minister for reassessment. The Federal Court
of Appeal allowed the Minister’s appeal. The
City asserted that it made two supplies. The
first, which it called “public transit services,” it
provided in operating its transit facilities. The
recipient of this supply, according to the City,
was the Calgary public. The second supply,
which the City called “transit facilities
services”, it argued it had provided in
“acquiring, constructing and making available
the transit facilities to the citizens of Calgary”.
The City claimed that its “transit facilities
services” were a separate, taxable supply, the
recipient of which was the Province.
HELD: Appeal dismissed. The City made
only one supply: the exempt supply of a
municipal transit system to the public. The
alleged separate supplies were so
interconnected that it would be difficult to
identify distinct elements or components.
The City’s acquisition and construction of the
transit facilities served the purpose of enabling
the City to provide a transit service to the
public. The end result of those activities was
that a municipal transit service, featuring
several expansions and improvements, could
be operated. Nothing else was produced as a
result of the activities. Fulfilling the
accountability obligations under the funding
agreements with the Province did not result
in a separate supply to the Province. The
City’s compliance with the accountability
measures did not amount to the provision of
any goods, services, or benefit to the Province.
The acquisition and construction of transit
facilities was an input to the single supply of
the municipal transit service to the Calgary
public. The Act demonstrated that Parliament
intended for public service bodies to receive
rebates at specified rates for the GST that
WORKERS’ COMPENSATION –
Benefits – Payment of benefits – Effect
of pension benefits or other income –
Legislation – Interpretation.
Appeal by the employer from a decision
of the Appeals Tribunal finding that
retirement benefits paid under the Canada
Pension Plan were not to be deducted from
compensation benefits paid to a worker
under the Workers’ Compensation Act. The
respondent Douthwright was injured in a
work accident. He obtained Workers’
Compensation Act benefits and then
became entitled to long-term disability
benefits. At age 60, the respondent opted to
take Canada Pension retirement benefits.
The Commission reduced his long-term
disability compensation benefits by the
amount of his retirement benefits. The
Appeals Tribunal concluded that retirement
benefits did not qualify as supplemental
benefits under s. 38.11( 9) of the Workers’
Compensation Act, as these constituted
income earned prior to the compensable
injury and not in respect of the injury or
recurrence of the injury. The benefits were
thus not deductible. The Appeals Tribunal
also found that the Commission’s policy
which specifically stated that Canada
Pension Plan retirement benefits were a
supplement to compensation contravened
the Workers’ Compensation Act and was
therefore inoperative in respect of its
requirement that Canada Pension Plan
retirement benefits be deducted from loss of
income benefits received by workers under
the Workers’ Compensation Act.

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