The Federal Court has plainly and forcefully struck down the approach used by the Canadian Intellectual Property Office (CIPO) to patent claims in a decision widely expected by the patent bar to have far-reaching implications, particularly for computer-implemented inventions.
Federal Court of Canada
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Federal Court rejects Canadian Patent Office’s approach to computer-implemented inventions
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Federal court judge declares retroactive record suspension eligibility requirements unconstitutional
Following in the footsteps of British Columbia and Ontario, a Federal Court judge declared retroactive record suspension eligibility requirements to be unconstitutional, opening the door to thousands of offenders across the country to be eligible for a pardon. -
Mandatory minimum sentence declared unconstitutional for Aboriginal accused
A Court of Quebec judge declared the minimum mandatory sentence of four years imprisonment for discharging a firearm while being reckless to the life or safety of another person as unconstitutional and inoperative for an Aboriginal offender. -
Procedural bijuralism pilot project to be launched by federal courts this fall
An ambitious pilot project by the federal courts that will allow for the application of the Quebec Code of Civil Procedure is being lauded by Quebec practitioners as a welcome initiative that may prompt more of them to avail themselves of the federal judicial bodies. -
Former Montreal Crown prosecutor who filed a reprisal complaint wins partial victory
A former Crown prosecutor who filed a reprisal complaint against the Public Prosecution Service of Canada before the federal Office of the Public Sector Integrity Commissioner partially won his case before the Federal Court of Canada.In a ruling that brings clarity to the role of the whistleblowing commissioner, the Federal Court held that the Integrity Commissioner does not have the charge to decide people’s credibility nor should he address thorny legal questions. Instead the commissioner’s role lies with determining on an objective basis whether reprisal complaints should be forwarded to the Public Servants Disclosure Protection Tribunal, added the decision in Agnaou c. Procureur générale du Canada 2017 CF 338.
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Federal Court of Appeal allows use of mark-to-market tax accounting
Taxpayers are entitled to use the mark-to-market method to compute income for federal tax purposes if it provides a more accurate picture of a taxpayer’s income, ruled the Federal Court of Appeal.The federal appeal court decision bolsters the possibility for taxpayers to use methods to compute income that are not forbidden by the Income Tax Act (Act), affirms Canada Revenue Agency’s administrative position that allows regulated financial institutions to tax derivatives on a mark-to-market basis, and may open the door to allow financial accounting to become more influential in determining what constitutes an acceptable method of computing income from business, according to tax experts.
“The case confirms that taxpayers are to determine profit for tax purposes on the basis that reflects an accurate picture of the taxpayer’s income,” said James Morand, a Toronto tax lawyer with Cassels Brock & Blackwell LLP. “If mark-to-market presents a truer picture of a taxpayer’s income than realization or some other method of computation, it is preferable.”
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Montreal tax lawyer fights federal whistleblower watchdog
Yacine Agnaou is one of a handful of Canadian lawyers who took on Quebec tax authorities and plead a case so successfully that now others are trying to follow suit. Last year Agnaou won a precedent-setting ruling that condemned Revenue Quebec to pay nearly $4 million, including a staggering $2 million in punitive damages, to a businessman who was forced to shut down his business after it mishandled his case. Lawyers from different firms, evidently emboldened, are now working together to plead a case before the Quebec Court of Appeal to stop Revenue Quebec’s controversial policy of holding companies liable for the tax delinquencies of its suppliers.
Now Agnaou is immersed in another legal battle against another government department, and once again the odds of winning are stacked against him. Agnaou, a former Crown prosecutor, has filed a motion for leave to appeal before the Federal Court of Appeal in a bid to force the federal whistleblower watchdog to investigate his allegations of wrongdoing against the Public Prosecution Service of Canada.
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Quebec tax authorities chastised for expecting business to act as “tax police”
The Tax Court of Canada, in yet another legal blow to Quebec’s tax authorities, chastised Revenue Quebec for expecting business to act as a “taxation police” after it withheld input tax credits from a meat processing company because it ostensibly had not been diligent in its dealings with its suppliers.The precedent-setting ruling, the third to harshly castigate the Quebec taxman in recent months, found that nothing in the Excise Tax Act (ETA) allows tax authorities to hold a company liable for the tax delinquencies of its suppliers. In uncharacteristically blunt language, Justice Alain Tardif noted that it would be unreasonable to expect business to perform complete background checks on all its suppliers, especially since legislation grants tax authorities large powers to investigate and demand information.
Categories: Accounting, Business, Federal Court of Canada, Legal Practice Management, Quebec, Rulings, Tax -
Truth & Consequences: Whistleblowing legislation raises thorny issues
When Edgar Schmidt launched an atypical lawsuit against the Attorney-General of Canada accusing Ottawa of circumventing a legal requirement to properly review the constitutionality of draft legislation, the soft-spoken lawyer was prepared to pay the price for revealing a long-standing practice that strikes at the heart of the federal legislative process.
The riposte was swift. The day after the 61-year old senior lawyer of the federal Department of Justice filed his claim before the Federal Court of Canada in December 2012, he was suspended without pay. Schmidt would have preferred to keep working, but is now retired and living on a reduced pension. While disappointed with the “vengeful attitude” displayed by his former employer and the snub he has felt by some former colleagues, he has no regrets over his actions. “Quite frankly, I don’t think there was anything wrong with I did,” says the former general counsel of the Legislative Services Branch, the group responsible for drafting and examining bills and regulations. “There is nothing wrong in seeking to uphold the rule of law. There is nothing wrong in seeking the court to clarify one’s instructions when the instructions one is getting seems in conflict with the law.”
Schmidt joins a growing list of Canadian whistleblowers who quickly discover that disclosing potential wrongdoing in the workplace almost always leaves them vulnerable. Schmidt’s court case raises thorny issues over the nature of the professional responsibilities and ethical obligations of government lawyers. But it also underscores the tension that exists between the duty of loyalty an employee owes to his employer, freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms, and federal and provincial whistleblowing legislation that aims to protect whistleblowers from retribution by their employers.
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Quebec minister has wide powers over immigration rules appeal court
The Quebec government has wide discretionary powers to issue selection certificates to foreign nationals seeking to settle permanently in the province, according to two rulings issued concurrently in related matters by the Quebec Court of Appeal.
Indeed, the Court points out that under the Act respecting immigration to Québec (the Act), the Quebec Minister of Immigration and Cultural Communities can issue selection certificates to applicants who do not satisfy conditions and selection of criteria established by government policy, or refuse applicants who meet the conditions. (more…)
