Date: 20110509
Docket: A-346-10
Citation: 2011 FCA
157
CORAM: NADON J.A.
LAYDEN-STEVENSON J.A.
MAINVILLE J.A.
BETWEEN:
RALPH
BODINE
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
Heard at Vancouver, British
Columbia, on May 4, 2011.
Judgment delivered at Ottawa,
Ontario, on May 9, 2011.
REASONS FOR JUDGMENT BY: LAYDEN-STEVENSON
J.A.
CONCURRED
IN BY: NADON J.A.
MAINVILLE
J.A.
Date: 20110509
Docket: A-346-10
Citation: 2011 FCA 157
CORAM: NADON
J.A.
LAYDEN-STEVENSON J.A.
MAINVILLE
J.A.
BETWEEN:
RALPH BODINE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.A.
[1] Mr. Bodine appeals from the judgment of Sheridan J. of the
Tax Court of Canada (the judge) dismissing his appeal from income tax
reassessments for the 2000 and 2001 taxation years. This appeal relates only to
the 2000 taxation year and concerns the sale of a 20-acre parcel of land near Phoenix, Arizona
(Parcel 6).
[2] Despite
the capable submissions of Mr. Laird, I am of the view that the appeal should
be dismissed.
[3] The
judge concluded that the sale of Parcel 6 to the Price Company in 2000
constituted an adventure in the nature of trade.
[4] The
judge’s conclusion was based on her findings of fact and mixed fact and law
with respect to the factors articulated in Canada Safeway Ltd. v. Canada,
2008 FCA 24, 2008 D.T.C. 6074. The judge carefully and comprehensively
considered and analysed the evidence before her. She concluded, on the basis of
that evidence, that as of September 28, 1994, there was a clear intention to
convert Parcel 6 from a capital asset used in the production of farm income to
an item of inventory for sale in the partnership’s business (reasons for
judgment at paras. 39-40). Based on her appreciation of the evidence, she also
concluded, notwithstanding the use of the property for citrus production
between the date of its acquisition by the partnership and the date of its
sale, the intention (of the partners or the partnership) to use the property as
inventory in an isolated sales transaction remained constant.
[5] The
standard of review applicable to the judge’s findings is established by Housen
v. Nikolaisen, [2002] 2 S.C.R. 235. Questions of law are reviewed for
correctness and the questions of fact and questions of mixed fact and law
(absent an extricable legal question) are reviewed for palpable and overriding
error.
[6] Having
again reviewed the transcript, the judge’s reasons and the submissions of the
parties, I conclude that there is evidence in the record to support the judge’s
conclusion. In other words, the judge’s decision was one that was open to her
on the evidence before her. Contrary to Mr. Bodine’s assertion, it was not
premised only on the existence of a change in form (the 1994 reorganization)
although that was reflective of intention.
[7] Mr. Bodine’s
argument rests essentially on the judge’s appreciation of the evidence. Absent
palpable and overriding error, this Court will not engage in a reassessment of
evidence, nor substitute its view for that of the judge. Mr. Bodine has not
demonstrated palpable and overriding error.
[8] Accordingly,
I would dismiss the appeal with costs.
“Carolyn Layden-Stevenson”
“I
agree
M.
Nadon J.A.”
“I
agree
Robert
M. Mainville
J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-346-10
STYLE OF CAUSE: BODINE
v THE QUEEN
PLACE OF HEARING: Vancouver,
British Columbia
DATE OF HEARING: May 4, 2011
REASONS FOR JUDGMENT BY: LAYDEN-STEVENSON J.A.
CONCURRED IN BY: NADON J.A.
MAINVILLE
J.A.
DATED: May 9, 2011
APPEARANCES:
|
Gavin Laird
D. Lawrence Armstrong
|
FOR
THE APPELLANT
|
|
Michael Taylor
Zack
Froese
|
FOR
THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Armstrong Wellman
Victoria, B.C.
|
FOR
THE APPELLANT
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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