Income and excise tax cases tackled by Federal Court of Appeal this week
This week, the Federal Court of Appeal dealt with tax and intellectual property appeals. On the other hand, the Federal Court handled matters involving trademark registration amendments, registration under the Indian Act, and alleged breaches of Charter rights.
Federal Court of Appeal
On Monday, the court heard El-Ad Ontario Trust v. His Majesty the King, A-166-22. This appeal challenged a decision of the Tax Court of Canada. The appellant alleged that the motion judge wrongly concluded that s. 152(9) of the Income Tax Act, 1985 gave the respondent the right to withdraw any factual admission contrary to a new basis or argument raised under that subsection.
On Tuesday and Wednesday, the court heard the cases of Rovi Guides, Inc. v. Videotron Ltd., A-186-22; Rovi Guides, Inc. et al v. Telus Corporation et al, A-231-22; and Rovi Guides, Inc. et al v. Bell Canada, A-233-22. The appellant supplied digital entertainment technology, such as interactive program guide technology, to consumers to help them find programs of interest.
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The appellant asked the appellate court to declare that the asserted claims were valid and that the respondents infringed these claims. The appellant requested equitable relief and an injunction until the expiry of its patent.
On Wednesday, the court heard Canadian National Railway Company v. Canadian Transportation Agency, A-207-23. The appellant sought to remit a decision back to the Canadian Transportation Agency. Specifically, the appellant wanted the agency:
- to redetermine the volume-related composite price index for 2021–2022
- to redetermine the prescribed railway companies’ maximum grain revenue entitlement for crop year 2021–2022 under the Canada Transportation Act, 1996
- to deduct in future crop years any revenues lost as a result of the redetermination of the maximum grain revenue entitlement
On Thursday, the court will hear Corey Libfeld v. His Majesty the King, A-200-22. This appeal challenged an assessment disallowing an application seeking new housing rebate for goods and services tax/harmonized sales tax. The trial judge wrongly found that the property’s vendor was not a builder under s. 123(1) of the Excise Tax Act, 1985, the appellant alleged.
Federal Court
On Monday, the court heard Alexandre Dmitrienko v. Attorney General of Canada, T-1474-23. This judicial review application questioned the Veterans Review and Appeal Board’s denial of an application for reconsideration of its previous decision. The review and appeal board allegedly failed to provide an assessment for the applicant’s claimed cardiorespiratory impairment.
On Tuesday, the court heard the cases of Harley-Davidson Motor Company, Inc. (formerly H-D U.S.A., LLC) v. Montréal, T-348-23 and Harley-Davidson Motor Company, Inc. (formerly H-D U.S.A., LLC) v. Montréal, T-349-23. These were appeals under s. 56 of the Trademarks Act, 1985 from the trademarks registrar’s decisions amending the registration for:
- the trademark HARLEY-DAVIDSON to delete certain goods listed in the registration
- the trademark HARLEY to delete motorcycles, which were listed in the registration
Also on Tuesday, the court heard John Malcolm et al v. His Majesty the King et al, T-165-01. The plaintiffs, whose forebearers were Cree living in western Canada, claimed that they were entitled to registration as Indians under the Indian Act, 1985.
The plaintiffs requested clarification on whether the action should proceed as a representative action or as an action under the class action series 299.1 Rules, effective Nov. 21, 2002. In February 2005, in Gill v. Canada, 2005 FC 192, the Federal Court clarified that the action should continue as a representative action.
On Tuesday, the court heard Pacific Coast Terminals Co. Ltd. et al. v. Vancouver Fraser Port Authority, T-2256-22. This was a judicial review application regarding the port authority’s decision establishing fees payable relating to the Gateway Infrastructure Fee 2022, effective Jan. 1.
Last August, in Pacific Coast Terminals Co. Ltd. v. Vancouver Fraser Port Authority, 2023 FC 1099, the Federal Court granted leave to intervene to Saskatchewan’s and Manitoba’s attorney generals.
Also on Tuesday, the court heard Rafal Sechaber v. Canada Revenue Agency, T-2098-22. This judicial review application asked the court to recognize that the applicant met the income requirement of an application for benefits.
On Thursday, the court will hear Habeeb Ali v. Attorney General of Canada, T-2623-22. The applicant alleged that a decision relating to ss. 27 and 29 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000 was unreasonable and factually incorrect.
The judicial review application also claimed breaches of the applicant’s rights to mobility, equality, life, liberty, and security of the person under the Canadian Charter of Rights and Freedoms.