Citation: 2004TCC280
|
Date: 20040413
|
Docket: 2000-3716(IT)G
|
BETWEEN:
|
DAVID MORLEY,
|
Appellant,
|
and
|
|
HER MAJESTY THE QUEEN,
|
Respondent.
|
REASONS FOR JUDGMENT
Archambault, J.
As a retired senior partner from Coopers Lybrand said to me
this morning, parts of the private sector have brought this on
themselves by being both greedy and dumb. Unfortunately, we have
been caught up in the process.[1]
[1] This statement, written by
Mr. David Morley himself, sets the tone for the events
that led to these appeals. On December 8, 1993,
Mr. Morley became a limited partner of the Agensys (Canada)
Limited Partnership (Partnership), formerly known as the
Continental Limited Partnership. On December 31, 1993, the
Partnership allocated to him a loss of $217,282, mostly
attributable to capital cost allowance (CCA) claimed in
respect of a software (Software) acquired by the
Partnership for a disclosed price of $12,150,000. A portion of
the $217,282 loss, namely $36,028, was claimed as a carried over
non-capital loss in computing Mr. Morley's taxable
income for the 1990 taxation year.
[2] By Notice of Reassessment dated
November 21, 1997, the Minister of National Revenue
(Minister, Revenue Canada or CCRA)
disallowed Mr. Morley's share of the Partnership losses
for its 1993 fiscal period. He also disallowed the deduction of
the $36,028 non-capital loss for the 1990 taxation year.
Finally, he assessed penalties aggregating $50,495.35 pursuant to
163(2) of the Income Tax Act (Act), R.S.C. 1985,
c.1 (5th Supp.).
[3] A reading of the Reply to the
Amended Notice of Appeal identifies the following 14 issues
raised by these appeals:
1. Did the Partnership
constitute a valid partnership?
2. Did the Partnership
carry on any business for the purpose of earning a profit from
the exploitation of the Software and did it have a reasonable
expectation of profit, or was it formed for the sole purpose of
creating tax refunds for investors by claiming CCA relating to
the Software?
3. Did Mr. Morley
participate in the Partnership for the purpose of gaining or
producing income and did he have a reasonable expectation of
profit?
4. Was the Software
acquired for the purpose of gaining or producing income as
required by paragraph 1102(1)(c) of the Income Tax
Regulations (Regulations)? If not, it would not
constitute depreciable property.
5. Did the Software
constitute property described in paragraph (o) of
Class 12 of Schedule II of the Regulations, or did it
constitute a "systems software" within the meaning of
section 1104 of the Regulations or property described in
Class 14 of Schedule II of the Regulations?
6. Was the Software
"available for use" in 1993 within the meaning of
subsections 13(26) and (27) of the Act? If not, no CCA could be
claimed by the Partnership in 1993.
7. When was the Software
acquired: in December 1992, as claimed by Mr. Morley, or in
1993, as claimed by the respondent? If it was in 1993, the claim
for CCA would be subject to the so-called
"half-year rule" under subsection 1100(2) of
the Regulations.
8. What was the cost of
the Software to the Partnership? Was it limited to the cash
payment of $960,000 or was it equal to the amount of the
promissory note (Acquisition Note) for $12,150,000 issued
when the Software was acquired? The respondent claims that
neither the Partnership nor the vendor of the Software, Agensys
Corporation (Agensys T & C), an entity incorporated
under the laws of the Turks and Caicos Islands, ever intended to
create a legal liability under the Acquisition Note. Furthermore,
the respondent claims that Agensys T & C never intended to
collect on the Acquisition Note.
9. Did Mr. Morley,
the Partnership and Agensys T & C deal with each other at
arm's length or not, and what was the Software's fair
market value (FMV)?
10. Was the amount claimed on account
of CCA prohibited by section 67 of the Act as not reasonable
in the circumstances?
11. Was Mr. Morley subject to the
so-called "at-risk rules" under
subsection 96(2.1) of the Act, so as to reduce his share of
the Partnership loss to $35,025, the amount he actually disbursed
for the acquisition of his Partnership units?
12. Was Mr. Morley entitled to
deduct the $36,028 non-capital loss in computing his 1990 taxable
income?
13. Did Mr. Morley knowingly, or
in circumstances amounting to gross negligence, make a false
statement in his tax return, such that the penalty provided for
in paragraph 163(2) of the Act is applicable?
14. Did the Minister in the course of
his audit obtain any information or documentation in violation of
Mr. Morley's Charter rights, and if so, what is the
remedy?
[4] Either at the outset of the
hearing or in the course thereof, both parties made admissions
that resulted in the elimination of some of these issues. First,
the respondent admitted that the Software was neither a systems
software nor Class 14 property. The respondent also
abandoned the claim that penalties should be assessed against
Mr. Morley pursuant to subsection 163(2) of the Act. As
for Mr. Morley, he conceded, for the purpose of these
appeals, that the Software was acquired by the Partnership in
December 1993, although, he claimed, there was evidence
supporting a finding that it was so acquired in
December 1992. As a result, the Partnership was subject in
1993 to the half-year rule.
I Factual
Background[2]
[5] The hearing of these appeals
lasted 14 long days[3] over a three-week period. Hundreds of exhibits were
filed, representing several thousand pages.[4] I do not intend to review all the
relevant facts in this summary. I will deal with the more crucial
ones in the body of my analysis. However, it is useful to provide
at this point a general overview of the facts and a description
of the main actors in this saga.
[6] Mr. Morley is a tall,
charming person who, after graduating from the University of
British Columbia in 1958,[5] had a distinguished career in the Public Service of
Canada. This was recognized in a personal letter of March 1978
from then Prime Minister Trudeau when Mr. Morley
resigned temporarily from the Public Service. Following a few
business endeavours in the private sector, including acquiring an
interest in and becoming president of a software design company
(Omnitech Graphics Systems), he returned to the Federal Public
Service. It appears that he retired for good from the Public
Service sometime in 1993, when he decided to start his own
consulting firm.
[7] In September 1993, he was
introduced to the Partnership by a securities broker,
Mr. Mark Farmer. He received at that time a copy of a
confidential offering memorandum relating to the Partnership
units, a copy of the Software acquisition agreement and a copy of
the source codes escrow agreement.[6] In carrying out a considerable and
unusual amount of due diligence, he obtained a copy of an
appraisal report (1993 Pritchard Evaluation or
Report) dated June 28, 1993, prepared by Mr. Bob
Pritchard, together with an undated 49-page document
entitled "The Future of Information Management"
describing among other things the Software, its benefits and its
competitive position on the market. Included with this latter
document were testimonials[7] from users as well as from a professor who, the
document claims, conducted an "independent Product
Evaluation of AGENSYS" (that is, the Software).
Mr. Morley also consulted two software consultants in Ottawa
to obtain their opinion on the Software. He even had, together
with these consultants, a telephone conference call with the
creator of the Software, Mr. Howard Kale, who was living in Black
Canyon City, Arizona.
[8] On the basis of different
marketing materials relating to the Software,
Mr. Howard Johnson of Campbell Valuation Partners
Limited, the valuation expert who testified at the request of the
respondent, provided the following description of the Software
and its benefits at pages 7 to 12 of his report (Johnson
Evaluation or Report) dated May 23, 2003:
General description
The Software was described as an information management
system and language for designing, creating, enhancing and
documenting applications software. Developers could
use the Software to create applications to manage information.
Administrators could use the Software to provide security
and management control of the environment. For users the
Software provided an easy way to manipulate and manage their
information.
The Software enabled professional application design
and implementation without a prerequisite mastery of computer
science. The Software created a user environment and logical
instruction set, similar to Lotus 1-2-3 in the spreadsheet
environment, where the developer instructed the computer what to
do without having to program how to do it. Therefore, the
Software enabled the programmer to concentrate on the logical
processes required to do the application and not on all of
the intense, detailed programming instructions required for the
computer to do its tasks. The Software differed from Lotus 1-2-3
in that the Software addressed the much larger world of
information and database management and applications
development.
The Software included the following functions:
·
programming language- the Software was afourth generation
programming language, which allowed the user to write
instructions (program) in a form of human language, rather than
in computer code;
·
application developer- which contained all the elements
needed to create fully tested, functional programs and
applications, from design through documentation;
·
program editor- which was used to enter and edit the
Software source code. It was a fully-prompted, interactive
tool that eliminated many types of programming errors before they
occurred;
·
imaging package[8]- which allowed electronic capture, storage,
retrieval, display, transmission and printing of exact replicas
of document pages, the basis for a 'paperless' office information
system;
·
programming support and debugging package- which allowed
the programmer to test the program being edited, running the
program exactly as written and identifying errors to correct
before they happened, thereby avoiding costly, time-consuming
problems;
·
compiler and linker package- which translated high-level
language statements into a condensed form of symbols that could
be executed;
·
screen manager- which allowed the user to easily change
the format of the screen used in a particular program;
·
database manager- which allowed the error-free
manipulation of database files, allowing the user to enter,
organize, sort, and retrieve information, and which allowed
programmers to create databases, files and record layouts;
·
query language- which allowed the end-user to get
information out of a database file without knowing any codes or
key words, or having a pre-written program to get it. The
Software asked the user a series of simple questions about the
information wanted, and automatically instructed the computer to
find and organize the information, and bring it to the screen or
printer;
·
utilities package- which allowed the user to easily
maintain files. For systems managers and advanced users, the
Support Utilities provided methods for exploring the more
technical areas of the system, which would otherwise be
inaccessible;
·
disaster recovery package- which allowed the user to
reconstruct damaged files;
·
documentation package- which provided the tools to
automatically produce manuals for all applications, for users,
managers or developers;
·
security system- which gave management the ability to
control user access to the application programs and databases;
and
·
multiple language translation capability- which had the
capability of automatically producing documentation in up to
ninety-nine different languages.
Benefits of the Software
The benefits of the Software in contrast to other products
available around the Valuation Date were purported to include the
following:
·
the main strength of the Software was its ability to handle
very complex information management applications beyond the
capabilities of other automated tools. The Software
automatically understood basic commands to input, display, print,
and process information, and it has a file system that allowed it
to effectively access all required information;
·
simplicity - users did not have to know a lot about
computers, or understand how they worked, to use the
Software effectively. The Software assumed the responsibility
for instructing the computer what to do and when a command should
be executed. The Software, therefore, eliminated the
problem of having to be an expert in computer
science;
·
structured sentences - when the Software was instructed to
execute a command, it was done using a structured sentence with a
verb, adverb, object, and adjectives. As result of the users'
familiarity with English language sentence construction, this
resulted in a very fast learning curve for
programmers, who could become an expert in less than three
months. This, together with the automatic error correction
feature, made it easier to verify that the Software applications
are correct and bug free. The use of structured sentences
was the fundamental breakthrough and the paradigm shift offered
by the Software;
·
productivity, responsiveness and reduced costs - the
Software helped to speed up application development and to reduce
costs by applying the concepts of reduce, reuse and recycle
towards software development. That is, the Software had reusable
components in its architecture, which reduced the programming
required to develop an application by up to 80% relative to
traditional languages and tools. The Software tools also
reduced the time and cost required to develop applications
by eliminating most programming errors when they were entered and
by finding the remaining errors with continuous testing. By
supporting the re-engineering of legacy systems, the Software
made it possible to recycle existing data and processes when
moving to client/server architectures;
·
automatic documentation- the Software provided the tools
to automatically produce manuals for all applications, for
users, managers or developers, which was a major benefit not
available with most other products;
·
quality - the Software provided the tools and methodology
required to test and validate the designs for business
processes, user interfaces and application software. The
Software allowed users and analysts to develop applications,
which evolved gracefully to meet the changing requirements of
users. The Software increased the quality and reliability of
application software by assembling it from proven, reusable
software components;
·
portability - the Software separated data and logic
specifications from each other and from the operating
environment. This feature provided platform independence for
applications developed and executed with the Software. The
Software tools generated software that could be run on many
types of computers, networks, operating systems and user
interfaces. Furthermore, the communication and messaging
services provided by the Software allowed applications on
different platforms to exchange data;
·
interoperability- the Software provided an infrastructure
that developed software that conformed to international and
industry open system standards. Open system standards were
designed to make it easier for applications to communicate with
each other; and
·
scalability - an application developed using
the Software was scalable since the Software was
both portable and interoperable.
[Emphasis added and, unless otherwise indicated, footnotes
omitted.]
[9] To understand this description and
avoid some of the confusion that was prevalent during the
hearing, one has to distinguish between two key elements or
features of the Software: "application development" and
"application usage". First of all, an application
(application or business application), in the
computer world, is a software whose ultimate purpose is the
automation of business or human activity; examples are the
well-known Microsoft Word (for word processing) and Microsoft
Excel (for spreadsheet computations). What is meant by an
"application development" feature is a tool or
production kit that allows an application developer (i.e.
the software creator) to "create" an application.
In other words, it is a software that creates another software.
The "application usage" feature is the tool that allows
a user to use the application created by the development
application. In other words, it is the end-user business
application. Often, software companies that create information
management systems license their product in either of two ways,
one being as a version with the application usage only, also
called a runtime version. This can be described as a light
version of the information management system, because it only
allows the user to perform the basic functions of the application
and thereby enjoy its use. It excludes most of the advanced
functions that allow and facilitate the creation of
applications.
[10] Here, the Software offers both
features: "application development" (Development
Version or AGP) and "application usage"
(Runtime Version or AGS). Given that the Software
is described as "Agensys Development System", it is not
surprising that the above-quoted technical and marketing
description emphasizes its development features. What the
Partnership bought was first and foremost the AGP feature of the
Software, that is what it intended to sell initially to its
Canadian customers. It could not sell the Runtime Version (AGS)
alone because one needed first to create an application with the
AGP before that application could be used with the AGS. From
these explanations, it can be readily understood that the AGP is
the most valuable feature of the Software. It is with this
feature that one can make money either by licensing it or by
using it to create business applications for resale.
[11] Mr. Larry Gamble was the
promoter of the Partnership, its initial limited partner and the
sole shareholder of 616927 Ontario Inc. (GP), which was
the general partner of the Partnership. After graduating with a
teaching degree, he became a teacher in 1970. After four years,
he decided to reorient his professional life by moving into the
field of real estate and securities. He joined
A.E. LePage's securities division. He left that firm in
1988 to start his own real estate and securities firm, which he
sold in 1990. Mr. Gamble hired a former colleague,
Mr. Nicholas Barisheff, to manage the Partnership with
him. Mr. Barisheff graduated with a business degree from
Ryerson and started working in 1969. After five years as a
consultant, he joined A.E. LePage in 1974 as a securities
salesman. He left the firm in 1981. From 1981 to 1992, he was a
consultant in a variety of securities and real estate
transactions.
[12] It was Mr. Barisheff who,
allegedly in the spring of 1992, introduced Mr. Gamble to
Mr. Kale, who was looking for US$500,000 to fund a software
venture. The latter was described to Mr. Gamble as the
creator of a software known as "Kammand Software"
(Kammand). According to Mr. Gamble, the Partnership
acquired a revised version of Kammand known as the "Agensys
Software".[9]
It was the rights to this software that were purchased by the
Partnership, according to Mr. Gamble, on December 20,
1992. Those rights were limited to the use and the marketing of
the Software in Canada. A copy of the purchase agreement
(1992 Acquisition Agreement) was filed at
Tab 40 and Tab 55, subtab 6. This agreement was
amended and restated as of June 30, 1993. Pursuant to
the restated agreement (1993 Acquisition Agreement), the
Partnership acquired from Agensys T & C certain exclusive
intellectual rights associated with the Software for a stated
purchase price of $12,150,000 paid by the issuance of the
Acquisition Note. The Partnership was obliged to pay Agensys
T & C for the purchase an additional consideration equal to 10%
of its annual gross revenues after cumulative sales in Canada had
exceeded $120 million.
[13] Pursuant to the 1993 Acquisition
Agreement, the Partnership acquired more specifically the rights
to:
- use, exploit, modify, develop, change,
improve and maintain the Software,
- market the Software and provide related
services in Canada, and
- copy or reproduce the Software and related
manuals in Canada.
The source codes provided[10] to the Partnership were for execution on the
following three operating system platforms:[11]
- MS-DOS version 3.3 + (Microsoft 'C'
Compiler V. 6.0, and Borland 'C' Compiler V. 6.0);
- Unix - SCO SV R-3.2; and
- Sun OS.
Under the 1993 Acquisition Agreement, Agensys T & C agreed
to:
- provide training (to no more than two of
the Partnership's software engineers) and technical
consultation (up to two person-months per year) to
designated representatives of the Partnership,
- engage in promotional activities (at up to
six trade shows or retail outlets during a two-year period)
for a fee of a $500 per day (plus travel expenses),
- provide to the Partnership all Basic
Enhancements[12]
and Maintenance Modifications[13] that it developed,
- within a reasonable period of
"written request therefore [sic] by the
Partnership", develop the Support Software[14] (Support Software) and
transfer the Canadian copyright therein to the Partnership
"at no charge to the Partnership but in consideration of a
commercially reasonable royalty or like fee",
- provide to the Partnership on commercially
reasonable terms "Enhancements"[15] required in order for the Software
to remain competitive in the marketplace,
- launch within a year a national marketing
and promotional campaign for the Software in the United States
and provide the Partnership with copies of user testimonials.
[14] The purchase price (the lump sum
portion) described in the 1992 Acquisition Agreement was payable
by the delivery by the Partnership of the Acquisition Note in the
amount of $12,150,000. The note did not bear any interest until
December 20, 1993, and then bore simple interest at prime
(at the Royal Bank of Canada) plus 0.5% commencing on
December 21, 1993. The interest was to accrue until
December 20, 2002, at which time the accrued and unpaid
interest was to be capitalized and to form part of the unpaid
principal. Thereafter, interest on the unpaid principal was to be
calculated and payable on a quarterly basis starting on March 20,
2003. The principal amount was to be repayable as follows:
$960,000 in cash (representing 7.9% of the purchase price) on or
before December 20, 1993, and thereafter by quarterly
instalments commencing March 20, 1994. Payments prior to
December 20, 2002, however, were to be limited to 50% of the
net distributable cash of the Partnership. In respect of the
quarterly payments starting on and continuing after
March 20, 2003, they were to be made whether there was any
distributable cash or not, and the Partnership had to pay in full
by December 20, 2012, the principal and interest owing.
[15] On October 19, 1993,
Mr. Morley subscribed for 15 Partnership units for a
total purchase price of $232,500 ($15,500 per unit), payable
$35,025 in cash and, as to the balance of $197,475, by way of a
note (Subscription Note). The terms of the Subscription
Notes issued by the limited partners (Limited Partners)
regarding the calculation and the payment of interest and
regarding the payment of principal are identical to those of the
Acquisition Note issued by the Partnership except for one major
difference: the interest rate is prime plus 1%, and not 0.5%.[16]
[16] Mr. Gamble was not only the
promoter of the Partnership, the sole shareholder of the GP and
the initial limited partner, he was also an important[17] Limited Partner. He
acquired 63 units for a total cost of $950,000, for which he
disbursed only $143,113. As for Mr. Barisheff, he stated
that his financial situation did not allow him to become a
partner in the Partnership. Following the closing, on
December 8, 1993, of the Partnership's private
placement, Agensys T & C received as payment in full of the
Acquisition Note issued for the Software $960,000 in cash[18] together with
Subscription Notes issued by the Limited Partners aggregating
$11,190,000. The Limited Partners' units were also pledged as
security.
[17] Mr. Gamble also promoted 11 other
partnerships (11 Partnerships) formed to acquire the
rights to market the Software in other countries, such as
Australia and New Zealand, the United Kingdom, France and
Italy. These partnerships distributed their units in Canada
through confidential offering memoranda from 1993 to 1996. The
units of the Partnership and the 11 Partnerships (together
hereinafter referred to as the 12 Partnerships)[19] were marketed
as tax shelters by Mr. Gamble. Accordingly, the
Partnership's lawyer obtained from the Minister a tax shelter
number pursuant to section 237.1 of the Act. Mr. Morley
acknowledged during his testimony that there were significant tax
advantages to becoming a limited partner of the Partnership.[20] Mr. Morley
claimed a business loss of $217,282, although his actual
disbursement was only $35,025 in 1993, which represents just 15%
of the total cost of his Partnership units. For Limited Partners
who could claim the full amount of the Partnership losses at the
50% marginal tax rate, this represented an almost immediate
return of 310%.[21] For Mr. Morley, the actual return would have
been marginally lower, given that he had to carry back to 1990 a
portion of his losses. Obviously, the "tax profit" (the
difference between the tax savings and the cash disbursement)
would be reduced if the Limited Partners were required to pay
their Subscription Notes and to pay tax on their pro rata
share of the Partnership income. However, the Partnership
never - that is, from 1993 to February 28, 1997, when
it was dissolved - made any sale of the Software and never
received any gross revenues from the exploitation of the
Software. Mr. Morley (as in all likelihood all the other
Limited Partners) has never been required to make any payment on
his Subscription Note, either on the principal or in respect of
any interest owing thereon; nor is it expected that he will ever
have to.[22]
[18] On December 31, 1993, the Partnership
entered into an exclusive marketing agreement (Marketing
Agreement) for a period of 10 years (renewable for two
additional five-year periods) with Compucor Marketing Inc.
(Marketing), whose name was eventually changed to Agensys
Marketing Inc., to promote and market the Software to prospective
end-users.[23] According to the Partnership's 1994 financial
statements, the Agensys Partnerships entered into a similar
agreement.[24]
Mr. Gamble indicated that Mr. Barisheff and he each
held 50% of Marketing's shares. However, this is in
contradiction with the above-mentioned financial
statements, which indicate that Mr. Gamble owned indirectly
100% of Marketing.[25]
[19] Pursuant to article 8.1 of the
Marketing Agreement, Marketing was entitled to retain, in
exchange for its services, 50% of all gross sales (whether made
by Marketing or not) of the Software. Under article 6.1 of
that agreement, Marketing was also authorized to offer to
end-users ancillary services in support of the Software,
including assistance with installation, technical training and a
telephone hotline. Marketing was entitled to retain 90% of the
fees paid for those services. Finally, pursuant to
article 8.2, the Partnership was required to reimburse such
out-of-pocket expenses incurred by Marketing in the
performance of its duties "as the Partnership may in its
sole discretion consider advisable". In any event, the
Partnership was to advance up to $500,000 to Marketing for the
establishment of training and support services and facilities, as
well as provide and advance against initial reimbursable
marketing and promotional expenses. [26]
[20] Mr. Morley's role was not
limited to that of a passive limited partner. He also joined the
"management group"[27] that looked after the affairs of the
Partnership. Starting early[28] in 1994, he became involved in the marketing of
the Software. Although he stated during his testimony that he
worked on an "unpaid basis" from March 1994 to
July 1994, it is apparent from the correspondence filed in
evidence that Mr. Morley was hoping to earn commission
income on sales of the Software and a percentage of the service
fees for providing custom application software to the federal
government and other potential clients of the
12 Partnerships. However, in August 1994, Mr. Morley
decided it would be more advantageous for him to charge the
management group a management fee of $5,000 per month ($60,000
per year). As will become apparent below, he must have realized
early on that sales were going to be very difficult to achieve
and that it would take much more time than anticipated before he
could earn his commission income. Given that no sale was ever
made, that proved to be the right move for him, and even more so
when his management fee was increased to $7,500 per month for the
second year ($90,000 per year). On April 20, 1997, this
arrangement was modified in favour of a fee of $75 per hour.[29]
[21] The witnesses heard at the hearing did
not give a good description of the interrelationship of the
12 Partnerships, of the role of Agensys T & C and Agensys
U.S., or of the Software's attributes over the years. Some
light is shed thereon by an undated memorandum
(February 8, 1995, Batton Memo) (found in
Tab 60) from Mr. John Batton, president of
Agensys U.S., to Mr. Gamble. The most likely date of
the memorandum is February 8, 1995, which corresponds to the
date printed on it by the fax machine. It refers to attached
undated documents, such as Agensys T & C's
"Operational Plan" and "Development Plan",
which two documents were received by Agensys U.S. in May 1994.[30]
[22] The first two pages of the
"Operational Plan" are enlightening:
Agensys Corporation
Operational Plan
Agensys Corporation[31] has the Domestic and International Rights to the
Agensys Development System. It has contracted with:
Domestic (USA)
Agensys Inc.,[32] a Texas Corporation has the right[33] to sell and distribute the
Agensys Development System.[34] Agensys Inc. is charged with creating the
following marketplaces for the Agensys Development System:
Value Added Reseller Marketplace - Agensys Inc. is charged
with getting VAR's to utilize the Agensys Development System
as their base technology and developing applications for
distribution into the Retail and Corporate marketplace.
Application Marketplace - Agensys Inc. is charged with
creating applications with the Agensys Development System
that can be resold into the Retail and Corporate Marketplace.
Agensys Inc. is charged with entering into joint ventures that
will create applications with the Agensys Development
System to be resold into the Corporate and Retail
Marketplace.
Agensys Inc. is charged with creating a demand for the Agensys
Development System in the Corporate Information Management Arena.
This effort will be centered around offering solutions developed
by a consulting staff with the Agensys Development System being
the core technology for this staff.
These rights and charter are non-exclusive. The
payment for these rights is a % Gross royalty on the Agensys
Development System Licenses to be paid on a quarterly basis to
Agensys Corporation. The royalty stream is assignable to a
Limited Partnership.[35] Upon notification Agensys Inc. will re-direct
its royalty stream to the assignee.[36]
International
A series of Limited Partnerships will be established to
purchase the software for discrete countries, the following are
the countries and their respective percentage to the whole:
Country
|
Price[37]
|
%
|
Canada*
|
$ 12,150,000
|
5.2%
|
Aust/NZ*
|
7,300,000
|
3.26%
|
France*
|
16,900,000
|
7.56%
|
Italy
|
11,500,000
|
5.03%
|
United Kingdom
|
18,000,000
|
7.87%
|
Germany
|
22,000,000
|
9.62%
|
South Africa
|
2,500,000
|
1.09%
|
Mexico
|
4,000,000
|
1.75%
|
Austria
|
3,700,000
|
1.62%
|
Switzerland
|
3,700,000
|
1.62%
|
Spain/Port
|
8,000,000
|
3.5%
|
Holl/Lux/Bel
|
9,000,000
|
3.94%
|
Nor/Swe/Den
|
9,900,000
|
4.33%
|
Chi/HK/Mai/Sing/
Phil/Thai/Ind
|
5,000,000
|
2.19%
|
USA
|
95,000,000
|
41.55%
|
* These countries have Limited Partnerships that are
active as of the beginning of 1994.
|
The Revision of the Agensys Development System that is being
purchased by these Limited Partnerships is the 1993 MS-DOS
and SCO-UNIX platforms.
Payment for the country rights comes in two forms:
A payment at the time the limited partnership actually
purchases the rights.
The payment of a loan agreement that comes out of a royalty
agreement on the sales of the Agensys Development System.
[Emphasis added.]
[23] In internal memoranda of the Internal
Revenue Service (IRS) written in the fall of 1995, Agensys
U.S. is described as a corporation based in Dallas, Texas, and
"owned and operated" by John Batton.[38] "Mr. Kale,
"it is stated", is not related to this company."
He only provided his services. Moreover, Mr. Kale had
informed the IRS that he was not an "investor, shareholder,
or officer/employee" of Agensys U.S. and Agensys T & C;
nor was he related to Agensys T & C. Mr. Batton for his
part had stated that he had "not dealt with anyone [at
Agensys T & C] except the lawyer". He acknowledged that
"Mr. Howard Kale occasionally acted as a technical
conduit between" Agensys T & C and Agensys U.S. In their
testimony, Messrs. Gamble, Barisheff and Morley stated that
they did not have any kind of interest in Agensys T & C and
were not related to that corporation. They did not know to whom
it belonged, but they thought it belonged to Mr. Kale or his
family. In draft minutes of the Partnership's management
meeting held on February 28, 1995 (at which meeting
Mr. Kale is not listed as being in attendance), we find this
statement: "After a discussion between Howard Kale and Larry
Gamble, Howard advised that he is in sole control of Agensys
Corp. in the Turks & Caicos" (Tab 177).
[24] In January and July 1997, all the
assets of the 12 Partnerships were transferred to Agensys
International. Mr. Gamble indicated that this had been his
plan all along, namely, first, to finance the acquisition of the
Software through limited partnerships and, eventually to have the
assets of the partnerships transferred to a new corporation,
whose shares would be listed on a stock exchange. For reasons
that will be discussed below, Agensys International ceased its
operations at the end of August 1998 and, like the
Partnership, it never made any sale of the Software and never
received any gross revenues from the exploitation of the
Software. Altogether, the 12 Partnerships raised $69 million
which, net of the amount of the Subscription Notes, represented
$13 million. Of the $13 million, $6 million were paid
to Agensys T & C for the different territorial rights with
respect to the Software and $4.6 million were used in the
operations of the 12 Partnerships and of Agensys
International from 1993 to 1997.[39]
[25] On July 22, 1994, the Minister
wrote to Mr. Gamble to inform him that the Partnership and
four of the 11 Partnerships would be audited. This audit was
carried out by the tax avoidance section. On July 31, 1996,
this section informed the Partnership that, in the Minister's
view, the Software had no value and that the Partnership was not
carrying on any business. The Minister would therefore be
reassessing the Limited Partners, disallowing their share of the
Partnership's losses. Most of the partners were reassessed in
November 1996.[40] Mr. Morley was an exception, he was only
reassessed on November 21, 1997.
[26] On September 19, 1996, the Revenue
Canada Special Investigations Unit (SI) (responsible for
penal (criminal) investigations) was notified by the tax
avoidance section that Mr. Gamble, assisted by some
individuals (including Mr. Morley), was running a major scam
and that fraudulent deductions were being claimed. On
August 8, 1997, Mr. Gamble was notified by the
Assistant Director, Verification & Enforcement Division, that
the Partnership's file had been referred to SI. The letter
stated: "In order to ensure that your rights are protected,
I have been advised to refer your matter over to the Chief of
Special Investigations". On October 7, 1997, an SI
investigator filed a detailed Information to Obtain a Search
Warrant (Form 1, section 487 of the Criminal
Code) (SI Information Statement) with a judge of the
Ontario Court. Agensys International's attempt to have this
warrant quashed for deliberate deception was unsuccessful,[41] but in the end,
none of the persons involved in the affairs of the Partnership
were charged with tax evasion pursuant to section 239 of the
Act.
II Analysis
(A) Onus of Proof
[27] Before the specific issues raised by
these appeals are dealt with, it should be stated that it is
Mr. Morley who has the burden of demolishing the facts
assumed by the Minister in issuing his assessments. Counsel for
Mr. Morley gave the following description of the rules on
onus in his written closing arguments which I reproduce here in
part:
The Hickman case is also very important because of what
it says about onus of proof. At page 5376, Justice
L'Heureux-Dubé says as follows:
It is trite law that in taxation the standard of proof is the
civil balance of probabilities: Dobieco v. M.N.R.
[1966] S.C.R. 95, and that within balance of probabilities, there
can be varying degrees of proof required in order to discharge
the onus, depending on the subject matter: Continental
Insurance v. Dalton Cartage, [1982] 1 S.C.R. 164;
Pallan et al. v. M.N.R., 90 DTC 1102 (T.C.C.) at p.
1106. The Minister, in making assessments, proceeds on
assumptions (Bayridge Estates v. M.N.R., 59 DTC
1098 (Ex. Ct.), at p. 1101) and the initial onus is on the
taxpayer to "demolish" the Minister's assumptions in
the assessment (Johnston v. M.N.R. [1948] S.C.R. 486
[sic, actually 496]; Kennedy v. M.N.R., 73 DTC 5359
(F.C.A.), at p. 5361). The initial burden is only to
"demolish" the exact assumptions made by the Minister
but no more: First Fund Genesis v. The Queen, 90 DTC 6337
(F.C.T.D.), at p. 6340.
This initial onus of "demolishing" the
Minister's exact assumptions is met where the appellant makes out
at least a prima facie case: Kamin v. M.N.R.,
93 DTC 62 (T.C.C.); Goodwin (sic. Goodwyn) v.
M.N.R., 82 DTC 1679 (T.R.B.). ... The law is
settled that unchallenged and uncontradicted evidence
"demolishes" the Minister's assumptions: see for
example MacIsaac v. M.N.R., 74 DTC 6380 (F.C.A.) at p.
6381; Zink v. M.N.R., 87 DTC 652 (T.C.C.).
... Where the Minister's assumptions have been
"demolished" by the appellant, "the onus shifts
to the Minister to rebut the prima facie case" made out
by the appellant and to prove the assumptions: Maglib
(sic. Magilb) Development Corp. Ltd. v. The Queen,
87 DTC 5012 (F.C.T.D.) at p. 5018. ...
Where the burden has shifted to the Minister, and the
Minister adduces no evidence whatsoever, the taxpayer is entitled
to succeed: see for example MacIsaac, supra, where
the Federal Court of Appeal set aside the judgment of the Trial
Division, on the grounds that (at pp. 6381-2) the
"evidence was not challenged or contradicted and no
objection of any kind was taken thereto." See also
Waxstein v. M.N.R., 80 DTC 1348 (T.R.B.); Roselawn
Investments Limited v. M.N.R., 80 DTC 1271 (T.R.B.).
It is submitted that the following principles are clearly set
out by Justice L'Heureux-Dubé in dealing with the question
of onus:
1. In making
reassessments, the Minister proceeds by assumptions and the
initial onus is on the taxpayer to demolish these
assumptions.
2. An
Appellant has met its onus to demolish the assumptions of fact
made by the Minister if the Appellant makes out a prima
facie case.
3.
Unchallenged and uncontradicted evidence demolishes the
Minister's assumptions.
4. If the
Appellant makes a prima facie case and demolishes the
Minister's assumptions, the onus shifts to the Respondent to
rebut the prima facie case.
5. Where the
onus shifts to the Minister and the Minister adduces no evidence,
the Appellant is entitled to succeed.
In other words, the Appellant does not have an absolute burden
of proof the way the Crown would in a criminal case. Rather, the
Appellant can demolish the assumptions on which the reassessment
is based, simply by making a prima facie case. Once the
Appellant does this, the onus shifts to the Minister and if
the Minister adduces no evidence, the Appellant is entitled to
succeed.
Justice L'Heureux-Dubé goes on to say at page 5377:
As Rip, T.C.J. stated in Gelber v. M.N.R.,
91 DTC 1030 at p. 1033 '[the Minister] is not the arbiter of
what is right or wrong in tax law'. As Brulé, T.C.J.
stated in Kamin, supra, at p. 64: the Minister
should be able to rebut such [prima facie] evidence and
bring forth some foundation for his assumptions.
The Minister does not have a carte blanche in terms of
setting out any assumption which suits his convenience. On
being challenged by evidence in chief, he must be expected to
present something more concrete than a simple assumption. [42]
[28] I agree in general with this
description. However, I would add the following two comments.
First, the prima facie evidence that has to be
adduced by the taxpayer must be credible. Second, where the
Minister adduces some evidence, it is for the judge to make an
overall assessment of the weight of the evidence introduced by
both sides and to come to a conclusion, on a balance of
probabilities, as to whether a case has been made by the
taxpayer. Mr. Morley's counsel stated at the hearing
that he agreed with both of these comments.
(B) Was the Partnership
formed for the purpose of exploiting the Software for a
profit? Did it carry on a business in 1993?
[29] Of the 14 issues identified above,
only eleven remain. The first four can all be dealt with together
because they relate to the same basic issue : whether the
Partnership was carrying on a business with a reasonable
expectation of profit during the 1993 taxation year. Given that
the main raison d'être of the Partnership was to
acquire the Software, this issue comes down to determining
whether the Partnership was formed for the purpose of exploiting
the Software for a profit or whether its sole purpose was to
create tax refunds for its Limited Partners by claiming CCA with
respect to the Software. The answer to these questions will
resolve, in my view, all four issues.
[30] In subparagraph 21(h) of its Reply
to the Amended Notice of Appeal, the respondent stated that the
Minister relied on the following assumption relating to this
particular issue in issuing his assessment:
21(h) the alleged Partnership was formed by
Larry Gamble for the sole purpose of creating tax refunds
for investors from claiming capital cost allowance.
[31] In his written argument, counsel for
the respondent takes a slightly different approach. He focuses
mainly on the 1993 taxation year and states that no business was
being carried on in that particular year. Here is his
position:
A. NO PARTNERSHIP IN
1993
3. A
partnership is two or more persons carrying on business in common
with a view to profit. There is no longer any doubt that
one must satisfy the three essential ingredients of (a) business;
(b) carried on in common; and (c) view to profit in order to
demonstrate that a partnership exists.
Backman v. Canada, [2001] 1 S.C.R. 367
[Tab 20]
4. The
Respondent would submit that no partnership existed in 1993 on
the basis that the partners had no view to profit from sales in
relation to the software. This is borne out by the fact
that (i) a thorough examination of the software was not conducted
prior to purchase, (ii) at least until 1994 Agensys Canada had no
technical staff, (iii) the software was evidently not
"delivered" or examined until December, 1993; (iv) all
of Agensys Canada's energy, at least until 1994, was devoted to
the promotion and sales of limited partnership units, not
software applications.
5. Indeed, the
Respondent would submit that if any "business" existed
in 1993 it was promoted as a tax savings vehicle to limited
partners, with little if any concern about the capacity of
Agensys Canada to capitalize on the use of the software
purchased, and that there could be no expectation that Agensys
Canada could profit from the use of the software until the
software was examined in December 1993. The Respondent
would further submit that the Appellant has failed to demonstrate
an expectation of profit which is exemplified by the fact that no
revenues were generated whatsoever, nor were any efforts made to
maintain the software as state-of-the-art in order to facilitate
such sales.
6. The Supreme
Court of Canada has indicated that "to ascertain the
existence of a partnership the courts must inquire into whether
the objective, documentary evidence and the surrounding facts,
including what the parties actually did, are consistent with the
subjective intention to carry on business in common with a view
to profit".
Backman, supra, paragraph 25
7. As such,
the Court must look at the totality of the circumstances and
avoid a mechanical application of a checklist or test with more
precisely defined parameters. The Court must be pragmatic in
their approach to the three essential ingredients of
partnership. Whether a partnership exists depends on an
analysis and weighing of the relevant factors in the context of
all the surrounding circumstances.
Backman, supra, paragraph 26
8. That the
partnership documents and other documents indicate an intention
to form a partnership is not sufficient to satisfy the
requirements for a partnership. Fundamental criteria of
partnership must still be met.
Backman, supra, paragraph 27
9. In summary,
the Respondent would submit that there was no view to profit by
Agensys Canada in 1993, nor any business carried on in 1993. The
activity that took place related to the sale of the partnership
units. The partnership was not in a financial position to begin a
marketing effort until 1994. In the result, there was no
partnership, at least not in 1993.
[32] Mr. Morley's position is that
"there can be little doubt that the activities carried on by
the taxpayer were of a commercial nature and the reasonable
expectation of profit doctrine could not possibly have any
application" (page 21 of his counsel's written
argument). In support of this position, his counsel relied on the
pronouncements of the Supreme Court of Canada in Stewart
v. The Queen, 2002 CarswellNat 1070, 2002
SCC 46, 2002 CarswellNat 1071, 212 D.L.R. (4th) 577, 2002 DTC
6969, par. 53:
We emphasize that this "pursuit of profit" source
test will only require analysis in situations where there is some
personal or hobby element to the activity in question. With
respect, in our view, courts have erred in the past in applying
the REOP test to activities such as law practices and restaurants
where there exists no such personal element. . . . Where the
nature of an activity is clearly commercial, there is no need to
analyze the taxpayer's business decisions. Such endeavours
necessarily involve the pursuit of profit. As such, a source of
income by definition exists, and there is no need to take the
inquiry any further.
[Emphasis added by counsel.]
[33] Counsel also added (at page 26 of
his written argument) that it "is clear that the position of
the Supreme Court of Canada today is that even if a taxpayer is
clearly motivated by tax motivations, such tax motivations do not
affect the validity of transactions for tax purposes unless the
transaction constitutes a sham." In support, he cited The
Queen v. Walls, 2002 CarswellNat 1072, 2002 SCC
47, 212 D.L.R. (4th) 606, 2002 DTC 6960, par. 22:
Although the respondents in this case were clearly motivated
by tax considerations when they purchased their interests in the
Partnership, this does not detract from the commercial nature of
the storage park operation or its characterization as a source of
income for the purposes of s. 9 of the Act. It is a
well-established proposition that a tax motivation
does not affect the validity of transactions for tax purposes:
Backman v. Canada, [2001 DTC 5149] [2001] 1 S.C.R.
367, 2001 SCC 10, at para. 22; Shell Canada Ltd. v.
Canada [99 DTC 5669] [1999] 3 S.C.R. 622; Canada v.
Antosko [94 DTC 6314], [1994] 2 S.C.R. 312;
Stubart Investments Ltd. v. The Queen [84 DTC
6305], [1984] 1 S.C.R. 536, at p. 540. In addition, we
reiterate the caution stated in Stewart at para. 65 that, given
the specific anti-avoidance provisions in the Act, courts should
not be quick to embellish its provisions in response to tax
avoidance concerns: see also Ludco Enterprises
Ltd. v. Canada [2001 DTC 5505], [2001] 2 R.C.S.
1082, 2001 SCC 62, at para. 39; Neuman v.
M.N.R. [98 DTC 6297], [1998] 1 S.C.R. 770, at para. 63.
[Emphasis added by counsel.]
[34] Although it is very troubling that the
Partnership never made any sales, it is my view, on a balance of
probabilities, that the evidence introduced by both parties at
the hearing supports the position of Mr. Morley that a
partnership was validly in existence on June 30, 1993, and
that it did carry on a business in 1993. First, there was a
partnership agreement executed in writing on June 30, 1993,
between two persons: Mr. Gamble, as the initial limited
partner, and the GP, as the general partner. Their intent, as
indicated in article 2.2 of that agreement, was to carry on
the business of "reproducing, marketing and distributing the
[Software] and other computer software within Canada and to
provide ancillary, support development, management and related
services, all with a view to making a profit from such
business". Obviously, this, in and of itself, would not be
sufficient evidence that a partnership existed. The conduct of
the partners must be consistent with this statement in the
partnership agreement.
[35] It is true that most of the efforts of
Mr. Gamble and the Partnership in 1993 were directed toward
raising capital for the Partnership by way of a private
placement. Mr. Gamble stated that, to that end, early in
1993[43] he
retained Mr. Allan Beach of Fasken, Campbell, Godfrey.
That firm prepared a confidential offering memorandum (the final
draft of which is dated July 20, 1993), offering 850
Partnership units, with a minimum subscription of $155,000 per
investor. Mr. Beach and Mr. Gamble were also busy
finalizing the terms of the 1993 Acquisition Agreement, which was
executed on June 30, 1993.[44] The Partnership's financing was completed
on the December 8, 1993, subscription closing date, when
34 investors subscribed for Partnership units, the aggregate
amount of the subscription was $13,175,000.
[36] At the same time, the Partnership was
also working on its marketing plan and some demonstrations were
given. According to Mr. Gamble, a Mr. Bergerson had been
retained sometime in 1992 to prepare an evaluation of the
Software and of the Canadian market. Like many documents[45] allegedly prepared
in 1992 and 1993, the document titled "KAMMAND: Canadian
Market Research" and presented as Mr. Bergerson's
report (Exhibit A-3) is not dated, nor is it identified as a
document prepared by him.[46] A copy of an agenda for a Software
demonstration to be given in Toronto in September 1993 by
Mr. Kale himself was also filed (Tab 52), among the
persons shown as attending are IBM or former IBM people.
Mr. Kale may[47] have provided those services pursuant to a retainer
agreement between Messrs. Kale and Gamble described in a
letter from the former to the latter dated January 17, 1993.
Furthermore, as mentioned above, the Partnership entered into the
Marketing Agreement with Marketing on December 31, 1993.
[37] In 1994, the Partnership leased on
Woodbine Avenue in Toronto 1,500 square feet of office space
plus a room for demonstrations. The Partnership moved sometime in
1995 to larger offices (3,000 or 4,000 square feet) located
on Consumers Road in Toronto.
[38] Basically, three individuals -
Mr. Barisheff, Mr. Gamble and Mr. Morley -
were involved in the management of Marketing and the Partnership
in 1994. Mr. Barisheff seems to have been the person in
charge of the whole operation. According to his testimony, he
devoted 100% of his time from September 1992 to
September 1998 to the Partnership and Agensys International.
He was involved in the strategic direction of the Partnership and
dealt with marketing and technical issues as well as securities
matters. He also met with the accountants and the lawyers and was
responsible for the hiring of staff. By way of remuneration, he
received 50% of the GP's fees; these fees represented $80,000
in 1993, $60,000 in 1994, $150,000 in 1995, and $180,000 in
1996.[48]
Mr. Gamble apparently devoted 75% of his time to the
Partnership; however, the description of his duties is vague: he
described himself as a "facilitator". I assume that a
fair portion of his time was spent on promoting the sale of the
units of the 12 Partnerships.
[39] In 1994, Mr. Morley was devoting
three or four days of his time to the Partnership or to
Marketing. In addition to trying to open doors at the federal
government and its agencies, he was also attempting to establish
"software factories" in Canada and foreign networks for
the 11 Partnerships. One of the sources from which he
obtained the names of potential business partners in foreign
markets was the Department of Foreign Affairs. One such lead,
involving an Italian corporation, appears to have been serious.
However, nothing ever came of it.
[40] One of the very first activities of the
Partnership in 1994 seems to have been having its management team
attend a training session given in Arizona by Western
International University. Attending the session were
Messrs. Gamble, Barisheff, Morley, Kale and Batton.
[41] According to Mr. Barisheff, the
initial plan (product approach) to sell the Software
itself to potential end-users was abandoned after that training
session.[49] The
Partnership then adopted the marketing strategy (consultating
approach) pursued by Agensys U.S., which consisted in
developing for government and business organizations the custom
applications required by them for the management of their
information. These organizations were grouped by sectors
(described as "vertical markets"), such as the federal
government sector, the aviation sector and the financial services
sector. It appears Mr. Morley was given the goal of
developing the government sector, Mr. Farmer, of developing
the securities sector, and a Mr. Bert Smalley, a pilot, of
developing the aviation sector.
[42] There are a internal memoranda and some
correspondence which show that Mr. Morley started to get
involved in the Partnership's marketing activities in
January 1994.[50] The very first memo, dated January 17, 199[4], and
addressed to Messrs. Gamble and Barisheff is very
interesting because, first, it shows that Mr. Morley at
least, believed that the Partnership was carrying on a genuine
business and, second, that he was able to diagnose very early
some of the weaknesses of its business plan.[51] Here is an extract from that
memo:
Before committing more time to the development of an approach
to marketing Agensys to the Public Sector, I would like to have a
clearer idea of how you plan to segment the Canadian market. I
also would like some more specific indication as to if and where
you see myself fitting into Agensys Canada's (AC) plans.
I appreciated being brought into the discussion last week. Two
impressions: the immense amount of work that has to be done
before a successful Canadian launch is possible; and, concern on
relying too long on US applications programming support.
Canadian governments will be particularly concerned about this
aspect. Speaking as a limited partner, when some cash flow
develops, a Canadian software factory could become a vaible
[sic] AC profit centre. A third concern relates to the
very modest funding base that is supporting AC.
. . .
To underline my earlier point about personal contacts. Last
week I was speaking to a friend of mine who is the senior
V-P responsible for the Bank of Montreal's foreign
exchange operations. . . . He asked for a presentation when AC
is operational. . . .
When you have had a chance, please give me a call. I am
interested in being associated with marketing AC and in covering
my own start-up costs. For this reason, I would
appreciate your being as specific as you can about any future
relationship you might envision.
[Emphasis added.]
[43] Actually, there is a significant number
of letters and internal memoranda filed as exhibits that show
Mr. Morley to have been busy trying to get different
government officials, corporate executives and individuals from
foreign countries interested in the Partnership's
consultating services.[52] One of the strategies for developing the
Partnership's business was, it appears, to create
"Canadian software factories", which would have
developed the business applications required by its clients.
Mr. Morley put a great deal of effort into getting some
Canadian provincial governments interested in offering tax
incentives for the establishment of such factories. However,
nothing seems to have come of those endeavours.
[44] It is rather confounding (not to say
pathetic) that the Partnership should have been trying,
especially in 1994 and 1995, to market its services as a
developer of business applications without having a proper
knowledge of its own Software, without the proper personnel to
develop those applications[53] and without all the functionalities of the
Software in place. A good example is found at Tab 102, a
letter from Mr. Morley to a Mr. Barron of the
Department of Economic Development, dated June 14, 19[9]4,
to which Mr. Morley attached an appendix, "Agensys: a
paradigm shift in application development", describing in
the following terms the platform independence of the
Software:
Applications modules developed under AGENSYS are
independent of all Hardware and Operating System
constraints, Data Structure dependencies, as well as network and
environmental dependencies.
[Emphasis added.]
Object Systems Inc. states in its product evaluation of the
software, dated September 6, 1994, that the Software did
"not provide cross platform interoperability nor [did] it
support access to an acceptable range of files and
databases" (Tab 128, p. 6 of the Executive
Summary). So Mr. Morley's statement is quite misleading![54]
[45] In fact, during most of 1994 and 1995,
the Partnership was not at all close to making any sales.[55] It had to hire
consultants just to evaluate what the Software could or could not
do, prepare numerous marketing evaluation documents and prepare
demonstrations for potential customers and Revenue Canada, and
correct the Software's defects (bugs).[56] For instance, in March of 1994,
Object Systems Inc. was hired to assess and to prepare marketing
materials for the Software.
[46] To further illustrate these points, I
will reproduce several extracts from memos, letters and reports.
First, in his memo dated August 8, 1994, addressed to
Larry Gamble and Nick Barisheff, Mr. Morley states
(Tab 117):
Paul Blair[57] made an interesting observation about Howard [Kale].
He said that Howard does not necessarily separate in his own
mind what AGENSYS is capable of doing from what the software can
do in real life performance. Howard's hand written note,
in reply to Larry's June 2 memo, is an example of his
unrealistic expectations as to what software will be developed by
"the end of 1994". (p. 2)
. . .
The information that Terry [Stanhope of Object Systems
Inc.] will be bringing back from his USA trip will likely
confirm that AGENSYS is not capable of performing as advertised.
Some existing software will likely have to be debugged. For
example, Paul mentioned that the AGENSYS Unix version, that
Howard claimed was finished, developed a bug on the first command
that Paul entered.[58] (p. 4)
[. . .]
As you know, I started marketing to the Federal
Government because we had to get our own sense of how the
product would be received. I stopped a month later because
we had no way of verifying whether the claims that we have
been making about its capabilities were fact or fiction. (p.
6)
[. . .]
If we do get our first application in the next six weeks,
we are not organized to provide professional pre, during and
post product development support services. There is much more
involved that in getting the US to program the application. (p.
8)
[Emphasis added.]
[47] The following is the assessment made by
Object Systems Inc. in its "Product Evaluation AGENSYS
Professional", dated September 6, 1994, at page 24
(Tab 128):
We have concluded that if potential customers were given
AGENSYS for a day or two for the purpose of making a decision to
buy or not, then they would decide not to buy. The documentation
doesn't compete with today's standards set by Apple and
Microsoft.
[48] In 1995, Messrs. Paul Mighton
and Gary McCann,[59] two persons with some experience in the software
business, were hired as consultants but were devoting 100% of
their time to the Partnership's activities. Also in 1995,
Mr. Karnis was hired as a consultant to help the Partnership
prepare a demonstration. The following memo, dated March 23,
1995 (Tab 189), from Mr. Morley to D. Strutt and
J-P Bradford shows that nine months later not
much progress had been achieved:
I told Larry [Gamble] and Nick [Barisheff] in July, 1994
that I had no intention of going back into the Federal Sector
market place until we had a product where we could give a hands
on demonstration of our claims, the senior bench strength to
market and develop the technology and the infrastructure in place
to support an application. They both understand that in a
market sector so insular as the Federal Public Service, it is one
strike and you are out. Terry was meant to provide us with the
technical capability. We lost five months as a result of his not
working out.
Until I have seen the demos that Gary McCann is
preparing and the marketing, demo presentation and sales
being put together by Paul, I will not commit ourselves to
going back into the Ottawa market. However, I finally believe
that we are now close to coming to grips with the issues that I
have mentioned above. It is time to start planning the Public
Sector Vertical Market (PSVMS) strategy. I would like your
input into the thoughts that follow.[60]
What follows is predicated on our having the ability to
implement a client-server application now. Paul [Mighton] and
Gary [McCann] say that we can have a mainframe interface
capability by July 31. We will probably target the AS 400,
as it represents a large market in North America and has a 70%
market share in Italy. Paul and Gary are currently in Dallas
to help confirm what we have in terms of software and what still
needs to be done. . . .
[Emphasis added.]
[49] In his report dated May 7, 1995
(May 1995 Report) (Tab 207), Gary McCann (VP -
Technology & Business Development) provides the following
description:
Agensys - Clarification of What We Have
The million dollar question that people have been
struggling with for some time has been, what exactly do we
have in the way of versions, releases and so forth? Much
documentation has been produced by several people identifying
development plans and future releases over the last year.
My mission in going to Phoenix was to once and for all put
this question to rest. There should be no further confusion
on this topic since what we have is a text/character mode
version of Agensys in DOS and SCO/Unix. That's it! Forget all
the documentation on 1994 releases providing GUI development
promises and deliverables in Windows, Windows NT, OS/2, Motif,
Open look etc. There is nothing to indicate that this
development was ever completed although it was part of a
development plan and not a bad one at that. The Dallas trip
raised some suspicion regarding this issue and the Phoenix
trip laid to rest any doubt of what we have in our
possession.
The fact that we don't have all the bells and whistles is
something we should not worry about. It should not concern us in
the short term. To reiterate, we have a stable and
commercially viable product, whereby we can effectively build
application solutions for our clients and commence to gain
recognition and secure some credibility in the industry. In
the longer term, we should be concerned as the market is and will
continue to demand products that users find intuitive and
entertaining. Unfortunate as this may seem, and irrespective of
the fact this has little to do with managing information, this is
reality and we aren't going to change it We have to
embrace technological changes and advancement in end user
computing and keep up with the trends or suffer the consequences
and become another statistic in the tough software business.
I'm speaking here of the end-user and not the
developer. Since development will be our responsibility, we
will remain in control and benefit from all the support services
or functions that will become a direct spin-off of the
development process, e.g. customer support, maintenance
contracts, education and training to name but a few.
Therefore, we should plan on commencing a product development
plan in Qtr III of 1995 which should include Database and
Network interfaces as well as platform interfaces such as
DEC's VMS and IBM's AIX and MVS. As a majority of legacy
systems were developed and still reside on MVS platforms, this
should be the first we work on. We should also focus on
Graphical User Interface (GUI) development to make the product
intuitive to the end user community. We should continue to
enhance the Translation Manager module and implement a multi
processing environment using various Agensys modules. By design,
this would not be difficult to do. All future development
activities will evolve do [sic] in part to a conscientious
plan to position us in future and will be partly dictated by our
client's [sic]. This development should be funded
through future revenues and the plan should consider a minimum
20% of revenues be allocated the development activities.
[Emphasis added.]
[50] The need for GUI in the Software
together with database and communications interface capabilities
was also recognized in a memo by Mr. Morley dated
January 20, 1996, in which he summarized the feedback
received from six demonstrations given by CGI. This well-known
software consultancy firm had been hired by the Partnership to
prepare and give demonstrations of the Software to potential
clients, which included IT partners from Coopers &
Lybrand, Ernst & Young, and Deloitte Touche, and to Revenue
Canada. It appears that the demonstrations were given to the
potential clients both before and after the presentation to
Revenue Canada. This is the harsh assessment given by those
potential clients (see Tab 296):
It was unanimous that none of the consultants'
[sic] clients would consider using AGENSYS until we can
demonstrate a Windows interface. We also have to be able to
demonstrate database and communications interface capabilities.
Through an independent group, such as CGI, we would also have to
have the [sic] document the reliability and robustness of
the AGENSYS nucleus. It would have to be bug free and have had
to undergone rigorous testing and acceptance procedures to
demonstrate that it was.
[Emphasis added.]
[51] The demonstration given to Revenue
Canada had been requested a long time - almost
12 months - before. Revenue Canada wanted to see the
Software and its source codes in order to determine whether the
Software actually existed, whether it performed as advertised and
whether it had any value. The perception of the consultants hired
by Revenue Canada who attended the demonstration held on
January 16, 1996, was that the "product as it exists
they would not recommend to anyone to buy it"
(Tab 293). One of them "had recorded a series of
functional gaps - a list of 12 enhancement
[sic] that has [sic] to be made to the
product" (Tab 299).
[52] There is also the assessment by
Mr. Phil Irving,[61] Technical Product Manager, that presents quite
a different picture from the one given in "The Future of
Information Management" about the easiness of use of the
Software. After having met Mr. Kale a few days earlier, he
provided the following comments in his February 20, 1996,
draft report (Tab 306):
4.3 Project
Design and Development
1. Project
design is a complicated process, requiring both a good
understanding of the business requirements and an excellent
background in database design and development. As such, it is
not recommended to have un-initiated designers develop the
solution. Note AGS should not be marketed as a tool which can be
used by just anyone to develop applications.
. . .
3. Development
work in AGS can be a long process, and could very well be
handled by a team of client and Agensys programmers working in
conjunction and under the management of the technical database
resources.
[Emphasis added.]
[53] Finally, there is this overall
assessment by Mr. David Gillman, who states in his
business plan of August 13, 1996 (Tab 336):
Marketing Howard Kale's product as a development tool
has met with stiff resistance for a number of reasons. The
technical limitations with respect of GUI, multiple platforms, a
viable methodology, track history have often been mentioned.
Secondly our competition is formidable and entrenched.
Thirdly, there was no clear direction of the market niche
the product would occupy. The wrong competitive advantages were
postulated as benefits.
Despite the technical and other limitations, I believe that we
can open a door for the product as an Object Oriented Development
Environment, and we should focus our entire image on this market.
. . .
. . .
Approach
We are at least a year away from formulating and marketing
a set of products that will tackle this market. Our approach
should be to obtain success in the services and applications
arena with the tool and methodology, develop success stories and
independent benchmarks, before tackling all but the smallest
companies with the tool as a product in and of itself. It is
too early to expend the time and expense to sell an unproven
product now. And I emphasize now. Once all the technical
problems are solved and the products clearly defined to the
marketplace, we should be in a position to exploit the product
benefits.
[Emphasis added.]
[54] As these extracts exemplify, it is
quite evident that Mr. Morley was trying to market to
potential customers a software product that had allegedly very
attractive functionalities but those functionalities were, to a
great extent, not in place when the marketing efforts were going
on from 1994 to 1996. Not only was the Software not yet ready to
fulfil all the promises but neither the Partnership nor Marketing
had on its staff in 1994 and 1995 the required human resources to
create the enhancements and to develop the business applications.
They had to rely on Agensys T & C which, under the 1993
Acquisition Agreement, was to deliver some of the required
enhancements described as Support Software "within a
reasonable period of written request therefore [sic]"
and to provide any other enhancements on commercially reasonable
terms. Since, it appears, Agensys T & C had no employees, it
had to rely on Agensys U.S., but there was no contractual
relation between the Partnership and Agensys U.S.!
[55] In view of all this, it is not
surprising that the CCRA's auditors got the impression that
all the marketing material being developed by the Partnership and
the demonstrations being given seemed to have as their main
purpose satisfying Revenue Canada's tax requirements.[62]
[56] Sometime in 1996, the business plan of
the Partnership was modified again: it abandoned the consultating
approach and decided to create generic applications (generic
application approach) following a suggestion that they adopt
the same approach as SAP, a well-known German software
corporation. The first generic application was AGS Mortgage, a
canadian mortgage servicing solution that was launched by the
Partnership late in 1996. A new general manager,
Mr. Frank Snape, had been hired in September 1996,
after Messrs. Mighton and McCann had decided to leave.
Mr. Snape had some management experience with different
corporations, including high-tech companies. He remained with the
Partnership until the rollover in 1997 and continued thereafter
with Agensys International until that corporation ceased its
operations at the end of August 1998. He hired several
programmers to build and create the generic business
applications. It took approximately six months to define the
specifications for AGS Mortgage and six months to program it.
This application seems to have been completed early in 1998. So
most of the work performed by Mr. Snape was done for the
benefit of Agensys International. In addition to AGS Mortgage,
Agensys International worked on developing other applications
such as AGS Canadian Property Management.
[57] There is no doubt that the
12 Partnerships were set up in order to maximize the tax
benefits for investors and that these partnerships were used by
the promoter to raise money in order to purchase rights to the
Software in different countries. The ultimate plan was to
rollover the Software to Agensys International and to get that
corporation listed on a Stock Exchange such as NASDAQ. In my
view, the fact that little business planning took place in 1993,
except with respect to acquiring the Software and raising the
capital for the Partnership and at least one of the
11 Partnerships (the one set up for the Australia and
New Zealand rights to the Software), does not mean that the
Partnership was not carrying on business in 1993 and that a valid
partnership was not formed. When a partnership is being formed,
it is normal that its energies be devoted initially to raising
the capital necessary to finance its business activities. In his
written argument, counsel for the respondent does not claim that
the Partnership was not carrying on a business from 1994 to 1996.
He focuses his attention mainly on the 1993 taxation year. In my
view, if the subsequent activities of the Partnership in 1994 and
thereafter amounted to a business being carried on, then that
business was in existence in 1993, when the financing activities
and the initial planning for the marketing of the Software were
taking place.
[58] Although the course of action followed
by the Partnership in carrying on its business appears to have
had a lot of shortcomings, the Supreme Court of Canada has ruled
that the courts are not to judge businessmen's acumen. Being
required to follow that Court's rulings, I conclude that the
Partnership was duly constituted in June 1993, that it carried on
a business for profit and that the Software was acquired for the
purpose of earning income therefrom. I believe that
Mr. Morley truly attempted to exploit the Software so as to
make a profit. Although Mr. Morley is capable of making
untrue statements in his marketing activities,[63] I cannot conclude that all the
correspondence which he generated and all the meetings which he
attended to promote both the Software and the Partnership's
services were just window dressing intended to give a false
appearance of a business being carried on. I do not believe that
he would have approached so many government and business
acquaintances for no genuine business purpose. A memo dated
April 23, 1994 (Tab 74, page 2), illustrates this
point:
Another factor that I care about is our personal reputations.
. . . I can deliver on the sales front because I am known and
trusted. None of us want to lose our reputations because of
ineffective planning and management down south. . . .
As the months and the years went by, more qualified personnel
was hired to work on premises leased for the Partnership's
activities. The efforts became more and more serious.
[59] The reasons why this business failed
are numerous. Obviously, it was badly planned and implemented.
This may be due in large part to the fact that too much attention
was given to and reliance placed on the tax shelter benefits.
There are plenty of examples to illustrate that tax incentives
may achieve opposite results to those which were intended when
the legislator enacted them. I should add that this is more
prevalent when such incentives are not used in the way that they
were intended, as is the case here. I am convinced that Agensys
U.S. was a lot more successful and profitable developing in the
U.S. business applications using the Software, for which it paid
only a royalty.[64]
[60] In any event, the business activities
carried on by the Partnership constituted the business of
Mr. Morley and, pursuant to section 96 of the Act, he
is entitled to deduct in computing his income his allocated share
of the business losses computed at the Partnership's level.
The amount of those losses will depend on how the other issues
are resolved.
(C) What was the cost of the software
acquired by the Partnership?[65]
[61] There are a number of facts relating to
the cost of the Software listed in paragraph 21 of the Reply
to the Amended Notice of Appeal, on which the Minister relied in
assessing Mr. Morley, namely:
(t) neither
Agensys Corporation nor the alleged Partnership intended to
create a legal liability under the Acquisition Note;
(u) the Acquisition
Note did not create an absolute liability on the part of the
[Partnership] to pay any amount to the holder of the Acquisition
Note;
. . .
(dd) neither the alleged
Partnership nor the Appellant intended to create a legal
liability under the Subscription Note;
(ee) at no time did the alleged
Partnership or Agensys Corporation intend to collect on the
Subscription Note;
(ff) the
Subscription Note did not create an absolute liability on the
part of the Appellant to pay any amount to the holder of the
Subscription Note.
[62] Counsel for Mr. Morley argued that
the evidence introduced during the hearing constituted a
prima facie case that the cost of the Software
amounted to $12,150,000. He essentially relied on the terms of
the Software acquisition agreement and the Acquisition Note and
on the acknowledgment of payment of that note by way of the
assignment of the Subscription Notes of the 34 Limited
Partners together with the payment of $960,000 in cash. In
addition, he relied on the testimony of Mr. Gamble and
Mr. Barisheff that the Software acquisition agreement
basically constituted the whole of the agreement and that there
was no secret covenant.[66]
[63] On a balance of probabilities,
considering all the evidence introduced before me, I come to the
conclusion that Agensys T & C and the Partnership never
intended to create a legal liability under the Acquisition Note
and that the former never intended to collect on the Acquisition
Note and the Subscription Notes which were assigned to it. The
Acquisition Note, and the Subscription Notes which replaced it,
can be described as a sham. They do not reflect the "actual
legal rights and obligations (if any) which the parties
intend[ed] to create".[67] I believe that the price paid for the Software
is limited to $960,000, being the amount of money actually
transferred to Agensys T & C in December 1993. There are
several reasons for coming to this conclusion:
(1) The Subscription Notes were never
paid. The Limited Partners, including Mr. Morley, were never
asked to pay any principal or interest on these notes.
(2) There is no corroboration by
Agensys T & C, the vendor, that the purchase price for the
Software was truly $12,150,000. Neither Mr. Kale nor any
representatives of Agensys T & C testified at the hearing.
(3) The evidence of Mr. Gamble is
not credible on the issue of the price paid for the Software.
(4) The FMV of the Software does not
exceed $960,000.
(5) According to the SI Investigation
Statement, one (Partner A) of the Limited Partners
indicated that there was never any intention to pay the
Subscription Notes.
(6) At best, the Subscription Notes
represented a contingent obligation to pay a royalty when and if
profit arose.
(1) Subscription Notes Never
Paid
[64] The strongest initial evidence that the
intention of the parties was to limit the price of the Software
to $960,000 is the fact that only that amount was ever paid to
Agensys T & C. More than ten years after the alleged
acquisition of the Software in December 1992, there had never
been any partial payment of the Subscription Notes by the Limited
Partners. Partial payments were due in March, June and September
2003, whether or not there was any net Partnership distribution
(or Agensys International dividend), and on September 15,
2003, Mr. Morley testified that no request for any such
payment had been made because the only recourse that Agensys
T & C had against him and the other former Limited Partners
following the settlement of a dispute in 1996 was limited to the
Agensys International shares, and those shares were worthless as
a result of a search and seizure that took place on
October 8, 1997, and the closing down of Agensys
International in August 1998. Those shares were transferred
to the partners of the Partnership on February 28, 1997,
when the Partnership was dissolved following the rollover of the
Partnership's assets to Agensys International on
January 1, 1997.
(2) No Corroboration by Agensys
T & C or Mr. Kale
[65] Nobody representing
Agensys T & C testified at the hearing. That includes
Mr. Kale and that corporation's legal representatives
with whom the Partnership was dealing at the time of the
acquisition of the Software and at the time of the aforementioned
dispute. To explain Mr. Kale's absence, counsel for
Mr. Morley relied on Mr. Barisheff's testimony
"that there was present an antagonistic relationship with
Howard Kale". This is what Mr. Barisheff actually
said when I asked him at the end of his testimony what had become
of Mr. Kale: "I have no idea. . . . He and I
haven't been on good terms since the lawsuit." However,
as far as I recall, no such statements were made by or in respect
of either Mr. Morley or Mr. Gamble, who was the
promoter of the Partnership, the sole beneficial owner of the GP
and, according to the Partnership's financial statements, the
sole beneficial owner of Marketing. Mr. Barisheff, according
to Mr. Gamble, was just a go-between. It would have
been of great interest to have Mr. Kale explain how the
terms of the 1993 Acquisition Agreement were negotiated in 1992
and 1993 and to hear his version of the 1996 dispute and why he
gave the 12 Partnerships and their partners an astonishing
settlement, which included converting general recourse notes into
a limited recourse against shares of a private corporation. Even
if Mr. Kale had refused to testify, there were means to
compel his attendance.[68] I draw a negative inference from the absence of
Mr. Kale and assume that his testimony would have been
adverse to the position advanced by Mr. Morley. I adopt the
same approach as that followed by Judge Sarchuk in Enns
v. Minister of National Revenue, 1987 CarswellNat
397, par. 9, [1987] 1 C.T.C. 2256, 87 DTC 208, and by
many judges of this court in other cases:
In The Law of Evidence in Civil Cases, by Sopinka and
Lederman, the authors comment on the effect of failure to call a
witness and I quote:
In Blatch v. Archer, (1774) 1 Cowp. 63, at p. 65) Lord
Mansfield stated:
It is certainly a maxim that all evidence is to be weighed
according to the proof which it was in the power of one side to
have produced, and in the power of the other to have
contradicted.
The application of this maxim has led to a well-recognized
rule that the failure of a party or a witness to give evidence,
which it was in the power of the party or witness to give and by
which the facts might have been elucidated, justifies the court
in drawing the inference that the evidence of the party or
witness would have been unfavourable to the party to whom the
failure was attributed.
In the case of a plaintiff who has the evidentiary burden
of establishing an issue, the effect of such an inference may be
that the evidence led will be insufficient to discharge the
burden. (Levesque et al. v. Comeau et al., [1970]
S.C.R. 1010; (1971), 16 D.L.R. (3d) 425.)
[Emphasis added by Judge Sarchuk.]
(3) No Credible Evidence
• Vague and contradictory description of how the
acquisition price was negotiated
[66] It is necessary at this point to go
over in greater depth the relevant facts that surrounded both the
negotiation of the price of the Software in 1992 and 1993 and the
alleged dispute that arose in mid-1996. Mr. Gamble
indicated that when the decision was made in the middle of the
summer of 1992 to acquire the Software, he decided to use
Mr. Barisheff as his agent to distance himself from
Mr. Kale, who was allegedly negotiating on behalf of Agensys
T & C. According to Mr. Gamble, he had very limited
contact with Mr. Kale during the course of the negotiations
that took place between Messrs. Barisheff and Kale. One
would thus have expected Mr. Barisheff to shed a lot of
light on those negotiations during his testimony. Surprisingly,
he provided only a vague description thereof. For instance,
Mr. Barisheff was not able to indicate Mr. Kale's
initial asking price.[69] He said that he could only remember a vague statement
by Mr. Kale that a company owning the Software might be
worth $100 million. Mr. Barisheff did not even recall
what his own initial offer on behalf of Mr. Gamble had been:
he only remembered a vague $10 million. Nor did
Mr. Barisheff provide many details as to how the cash
portion of the price was arrived at. He merely stated that
Mr. Kale's initial cash demand was about
$2 million.[70] Mr Gamble gave a different account but, in the end,
the purchaser of the Software did not really know how the
negotiations had gone. He gave the following answers to my
questions (at page 938 of the transcript of his evidence):
Q. Had you offered to pay fully cash, how much would
have been paid?
A. The thing that he was looking for was 12 million.
Q. 12 million.
A. Or 14 million, or whatever. He wanted
cash. That was his first thing. And we said we
couldn't afford 12.
Q. 12 or 14?
A. Well, don't quote me on the number. I'm
just saying that --
Q. Because it wasn't you again?
A. I was not dealing with this so it's speculating
again on my part.
[67] The only contact that Mr. Gamble
acknowledged he had with Mr. Kale during the negotiations
was when he received a phone call from Mr. Kale complaining
that these were not progressing fast enough. His reply was that
Mr. Kale would have to make a more reasonable offer.
Mr. Barisheff indicated that at one point Mr. Kale
asked $12,150,000 and this was agreed to early in the fall of
1992 by Mr. Gamble.
[68] Mr. Gamble said that, in order to
determine the fairness of the price, he consulted his nephew, who
was working for CGI and had some knowledge in that regard.
However, the nephew did not present himself to attest to that.
Mr. Gamble also indicated that he had talked to
Mr. Batton in order to obtain information about comparable
software in the U.S. market. It is worth repeating that
Mr. Batton never agreed to pay any large up-front
amount when he acquired the non-exclusive right to market
the Software in the U.S. through Agensys U.S.: the sole
consideration he provided was through a royalty-type
arrangement.
• Regarding the date of acquisition
[69] According to Mr. Gamble, the
Software was acquired on December 20, 1992, pursuant to the
1992 Acquisition Agreement. There is no statement in that
agreement as to the date on which it was executed; there is only
a statement that it was made "as of the 20th day of
December, 1992". According to Mr. Gamble, that document
was prepared by Agensys T & C's lawyers, and was signed by
him on the 20th or the 21st day of December 1992 at the office of
his real estate lawyer, Mr. Kutner, before he left for
his Christmas holidays and after it had been reviewed by
Mr. Kutner. Mr. Kutner did not testify to corroborate
Mr. Gamble's testimony and no reasons were offered to
explain his absence. When asked to corroborate the execution of
the 1992 Acquisition Agreement in Mr. Kutner's office by
Mr. Gamble, Mr. Barisheff responded, "it's
my impression that this agreement and other documents respecting
the partnership were signed at that time" not strong
corroboration:[71]
[70] Mr. Beach stated in his testimony
that he met Mr. Gamble in early December 1992 and was then
asked to "start thinking through the commercial transactions
and the documentation necessary for them".[72] He also said that he was
consulted about the 1992 Acquisition Agreement "at the time
that it was being drafted".[73] This description does not fit
Mr. Gamble's version of events. Mr. Gamble stated
that Mr. Beach was hired in early 1993 and he referred to
Mr. Kutner only as the lawyer who reviewed the 1992
Acquisition Agreement. Although he stated that the Partnership
entered into the 1992 Acquisition Agreement in 1992,[74] Mr. Beach
acknowledged that he did not draft that agreement and, in
cross-examination, stated that he did not negotiate it, was
not present when it was executed and did not know when it was
executed. It is odd that a lawyer hired specifically for his
knowledge in securities and software matters[75] would not have drafted such a
document and would not have been - as, according to
Mr. Gamble's version, he was not - consulted in
1992. It is very possible that Mr. Beach was consulted on
that agreement, but only in 1993. The 1993 Acquisition Agreement,
which he drafted, refers to the earlier agreement. For the
reasons given below, I think that, at the very least,
Mr. Beach is mistaken in his belief that this agreement took
place in December 1992 and that he was consulted on it in
1992.
[71] Mr. Gamble's testimony that he
signed the 1992 Acquisition Agreement in the office of his lawyer
on the 20th or 21st day of December 1992 before going away for
the Christmas holidays is not credible. There are many reasons
for coming to this conclusion. First, in an affidavit dated
February 14, 1995 (Tab 161), Mr. Kale states that
the Partnership acquired the Canadian rights to the Software on
December 15, 1993[76] - not on December 20, 1992, as claimed by
Mr. Gamble. Secondly, Mr. Morley informed the Chief,
Tax Valuations in Toronto in his letter of January 13, 1995,
that the valuation obtained by the Partnership was to help it in
its negotiation of the purchase price.[77] The 1993 Pritchard Evaluation is
dated June 28, 1993 - not 1992 -, which is consistent
with both Mr. Kale's affidavit and Mr. Morley's
statement.
[72] Paragraph 5 of the 1992
Acquisition Agreement states that the source codes were to be
delivered within three days of the execution of that agreement.
There is an Escrow Agreement, dated "as of the 20th day of
December, 1992" (Tab 43) between Agensys T & C, the
Partnership and Temple Trust, which may appear to support that
statement. However, according to Mr. Gamble, the source
codes were delivered a year later, on December 20, 1993,
when the Escrow Agreement was actually executed.[78] So we cannot assume that what
is stated in the 1992 Acquisition Agreement truly represents
reality. In fact, it makes more sense to conclude that the 1992
Acquisition Agreement was executed in the Turks and Caicos on
December 20, 1993, at the same time as the Source Code
Escrow Agreement was.
[73] Thirdly, when an agreement is executed
on a particular day, it is not the practice of lawyers (as
confirmed by Mr. Beach) in drafting such an agreement to
state therein that the agreement is made "as of" that
date. That is generally the wording used in documenting a verbal
agreement that took place at an earlier date. If one is signing a
document dated the same day as it is being executed, the document
would generally say something to the following effect:
"executed this day".
[74] Fourth, as pointed out by the
respondent's counsel, the corporation identified as Agensys
T & C (i.e. Agensys Corporation) did not have that name on
December 20, 1992. Corporate documents obtained from the
government of the Turks and Caicos Islands reveal that Agensys
T & C was incorporated on March 30, 1992, as
"Overseas Oil Consultants S.A." and that this name was
changed to "Agensys Corporation" only on May 20,
1993!
[75] Fifth, I do not believe that the
Partnership was acquired by Mr. Gamble in the summer of 1992
as he stated. He testified that the Partnership was a shelf
partnership[79]
(Shelf Partnership) which had been formed in 1983 and
which had been acquired from his lawyer, Mr. Kutner, in
mid-1992. The corporate records of the GP and the documents
that were filed by the Shelf Partnership with the Ontario
government do not support this version of the facts. First, the
notice of change regarding the Shelf Partnership was only made on
February 5, 1993, and not in 1992. The repurchase agreement,
dated December 9, 1993, and signed by Mr. Gamble
himself, pursuant to which Mr. Gamble transferred his
initial unit in the Partnership, states that he acquired that
initial unit on February 5, 1993.[80] Secondly, even the notice of change
does not describe Mr. Gamble as the new limited partner. It
is silent in that regard. Thirdly, it describes the business of
the Shelf Partnership as "real estate" and not as
marketing or developing software. Fourth, the new address shown
on the notice is not that of Mr. Gamble or one of his firms
with which the Shelf Partnership is connected. The address of
Mr. Gamble's firm is 301 Prudential Drive,
Suite 107, Scarborough, Ontario,[81] while the address indicated in the
notice is 100 Prudential Drive, Suite 112, Scarborough,
Ontario. Fifth, it is the name of the person shown in the 1983
documents that appears in the notice of February 5, 1993,
and not that of Mr. Gamble, as it would be reasonable to
expect if he had acquired the Partnership on that date. Lastly,
it is interesting to note that in his retainer letter of
January 17, 1993 (Tab 45), in which he agrees to
perform consulting services for the Partnership, Mr. Kale
refers to the "Agensys Limited Partnership's" and
not the "Continental Limited Partnership", as the
Partnership was called in the 1992 and 1993 Acquisition
Agreements. Why would Mr. Kale, who had just negotiated the
sale of the Software a few days earlier, refer to the wrong name,
a name that was eventually to be adopted some time after 1994? [82]
[76] On a balance of probabilities, I
believe that the 1992 Acquisition Agreement is a backdated
document, which was only prepared and signed after
January 17, 1993, the day Mr. Kale wrote his retainer
letter. I suspect that it was only after this date that
Mr. Gamble realized the impact of the half-year rule and
that he attempted to correct the situation with the 1992
Acquisition Agreement. I was therefore not surprised that
Mr. Morley's counsel indicated during the course of the
hearing that his client would admit that the Software was
acquired only in December 1993. However, this does not detract
from the fact that Mr. Gamble's credibility had already
been blemished.
• Regarding the first meeting with Mr. Kale
[77] Mr. Gamble's testimony was
contradicted on several other points. One relates to his
description of his very first meeting with Mr. Kale.
According to Mr. Gamble, that meeting took place in Toronto
in late winter or early spring 1992. Present at that meeting were
Messrs. Barisheff and Kale, Mr. Kale's lawyer and
two software experts. Mr. Gamble indicated that the purpose
of the meeting was twofold: first, to discuss the possibility of
Mr. Gamble lending money to Mr. Kale on the security of
a mortgage on Mr. Kale's ranch in Arizona; second, to
describe a software to Canadian investors. On several occasions
during his testimony, Mr. Gamble insisted (probably to
distance himself from Mr. Kale) that he was there for no
more than 40 minutes at the beginning of the meeting to
discuss the loan and that he left before the discussion turned to
the Software. This version of the events was contradicted by
Mr. Barisheff, who stated that the loan had been out of the
question from the beginning and, therefore, the purpose of the
first meeting in Toronto was only to discuss the Software. That
meeting lasted two or three hours and both Mr. Gamble and
himself had been present throughout it.[83]
• Regarding the seriousness of the dispute
[78] One of the reasons, it is alleged, why
no payment was ever made on the Subscription Notes is that they
were modified as a result of the settlement of a dispute that
allegedly occurred in 1996. The holder of those notes could only
exercise its rights against the Agensys International shares and,
as a result of that corporation having closed its doors, these
shares were worthless.
[79] A notice of action dated
September 23, 1996, was filed by the 12 Partnerships in
the Ontario Court of Justice (General Division) and sent to
Agensys T & C's and Temple Trust's attorneys. An
application for process was filed on September 25, 1996 in
the Supreme Court of the Turks and Caicos Islands against the
same defendants. A statement of claim was prepared but apparently
was not filed in the Ontario Court. In the statement of claim,
$155,000,000 was claimed as damages for alleged breaches of
acquisition agreements as follows: damages of $50 million
for breach of warranty in respect of the Software and breach of
covenant to provide certain services in connection with, among
other things, "the support, training, maintenance,
development, enhancement and promotion of the [Software]",
damages of $50 million "for breach of certain
collateral agreements", damages of $50 million for
"fraudulent or negligent misrepresentation", as well as
exemplary and punitive damages of $5 million. Neither the
notice of action nor the statement of claim provide additional
information relating to these alleged breaches. In addition to
all of the above, there was a request for the return of certain
funds held in trust for some of the 11 Partnerships.
[80] The main reason for bringing the suit,
according to Mr. Barisheff, Mr. Gamble and
Mr. Beach, was that Agensys T & C was not living up to its
obligation under the 1993 Acquisition Agreement to provide the
Support Software at no front-end cost. Agensys T & C
tried to get paid but the Partnership refused.[84] Messrs. Barisheff and
Gamble also mentioned the lack of technical and marketing
support. Mr. Gamble specifically referred to the U.S.
marketing campaign that was never launched.
[81] Although there is a fair degree of
consensus on the cause of the action, there is conflicting
testimony with respect to when the breaches took place. On one
hand, there was, according to Mr. Morley, non-compliance
regarding the delivery of the Support Software over a year and a
half before the suit was brought. According to Mr. Beach,
the dispute concerning the Support Software started at least a
year prior to September 1996. (See page 320 of
Mr. Beach's transcript.) Mr. Barisheff confirmed in
his testimony that almost all of the enhancements (i.e. the
Support Software) referred to in Schedule A to the 1993
Acquisition Agreement were never delivered by Agensys T & C. On
the other hand, according to Mr. Gamble, the delivery of the
Support Software was taking place without any problems until
mid-1996! Here is what he stated at pages 524-26
of his transcript:
Q. Did I hear you say that these difficulties arose in the
spring of 1996? Is that what you said?
A. In the spring it became very evident in the spring of
1996 because I was informed by AGENSYS Corporation that
they were not going to do any of the support software that we
requested without receiving up front money.
Q. Had there been any difficulties with the AGENSYS
Corporation over enhancements of any kind or any other kind,
prior to the spring of 1996?
A. There weren't anything that was substantial
that I could pinpoint. Things were slower to be done than
obviously I as the, and the Partnership, wanted them to.
But things were getting done, we were getting support, things
were moving along. And I really wouldn't have
had any idea that we were into a potential Notice of Action until
I was informed that in effect AGENSYS Corporation was not
going to live up to the agreement and supply the support
software we needed without charge, and then collect their
compensation by way of the royalty that had been agreed to.
Q. You received word that that was their decision?
A. I was told by, directly, by Howard Kale.
JUSTICE ARCHAMBAULT: And you are at what time now?
THE WITNESS: That was in about, I would have to guess,
May or June of 1996.
[Emphasis added.]
[82] Again, Mr. Gamble's version of
events is not only contradicted by other witnesses but does not
correspond to the documentary evidence. In order to understand
what the alleged dispute was all about, it is necessary to go
over the chronology of events, starting with the 1993 Acquisition
Agreement. Given that the details provided by the different
witnesses concerning the alleged dispute are of a general nature
and rather vague, it is necessary to rely on the documentary
evidence, and in most instances without the benefit of the
assistance of the authors. As far as I can gather, here is what
took place. At the time of sale, the Described Software only
provided some of the basic functionalities;[85] it was lacking several
well-publicized functionalities, such as portability on
numerous platforms, access to different databases, and GUI.
Agensys T & C had to undertake to enhance the Software. This it
did through the insertion in the 1993 Acquisition Agreement of an
undertaking (clause 4.4) to deliver the Support Software.
Nothing was supposed to be charged for this up front; only a
royalty, to be negotiated, was to be paid. For a reason that
escapes me, a written request was required for the Support
Software and it was never made according to Mr. Barisheff.
(Mr. Gamble did not know whether such a request was
made.)
[83] Agensys T & C did not have any
employees to develop the Software. It had relied on a consultant,
Mr. Kale, for that purpose.[86] In its correspondence, Agensys
T & C was always represented by a Turks and Caicos Islands
lawyer. After the sale of the Software to the Partnership,
Agensys T & C on April 7, 1994, entered into an agreement
(94 Development Agreement) (Tab 68) with Agensys U.S.
to take over Mr. Kale's obligations to develop the
future enhancements of the Software. The first project under this
agreement is described in a "Work Statement" dated
April 14, 1994 (Tab 68). The enhancements
(94 Enhancements) to be developed correspond to a
significant extent to the Support Software: they included five
new operating platforms,[87] GUI for five different environments, and five
communications protocols. Pursuant to the Work Statement, the
total price for these enhancements was to be borne by "the
organizations that are acquiring the exclusive country
rights". Agensys T & C was to be billed by Agensys U.S.
for work in progress. Fifty percent of the price was due
"from the countries funded at the time of delivery of the
beta object code" (Tab 68) (i.e. from those of the
12 Partnerships that had raised their funds by that time)
and the balance from those same countries when the project was
delivered and accepted. The Partnership's share was 5.2% of
the price.[88]
[84] On December 1, 1994, Agensys
T & C (through its lawyer) advised Mr. Gamble that the
beta copies of the 94 Enhancements had been received and
indicated that "as agreed 50% of the monies agreed upon for
this development are due and payable now" (Tab 145).
The Partnership paid the first instalment of US$22,620. That sum
represented one half of the Partnership's share of a total
cost of US$870,000, which is detailed in an attached invoice.
That invoice lists the same platforms as those shown in the Work
Statement, except that Windows NT 3.5 is described as NT
Win 16 and NT Win 32, and it adds the SCO Unix
platform, which was supposed to have been part of the described
Software delivered in 1993. A price of US$60,000 is charged for
each of the seven platforms. An undated Toronto-Dominion
accounting record shows that a sum of $22,620 was transferred to
Agensys T & C's attorney in the Turks and Caicos. The
February 8, 1995, Batton Memo confirms that the first half
was paid by the Partnership (and two of the 11 Partnerships)
(Tab 60).
[85] In his memo of February 19, 1995,
to Larry Gamble dealing with the Revenue Canada valuation audit,
Mr. Morley reminds him that the Support Software was to be
provided at no charge (except for a royalty or like fee) and that
an amendment to the 1993 Acquisition Agreement that
Mr. Gamble "discussed with Howard" would be
necessary to deal with "the recent billing by
John Batton" (Tab 167). Otherwise, "investors
could also question the earlier arrangement that you made to
provide [Agensys T & C] with US$60,000". Mr. Morley
recommended that "the basis for the development and payment
of Support Software should be reaffirmed with Howard and
John Batton advised accordingly".
[86] During a management meeting held two
days later, on February 21, 1995 (Tab 177),
Paul Mighton suggested that the Partnership "take
control of the product development" and proposed hiring
Mr. McCann as VP Technology.[89] Mr. Gamble suggested that
"McCann's contract" and "all development costs
should be funded from Turks & Caicos". He also insisted
that "Howard Kale [had] to live up to his original
agreement". At the management meeting held on March 8,
1995 (Tab 182), it was decided that Paul Mighton was to
establish a development plan and that, because of
Mr. Kale's "view on not accepting the position of
developmental costs coming from Turks & Caicos",
Mr. McCann's contract "be funded by
[Marketing]".
[87] Given that both Mr. Mighton and
Mr. McCann were to go shortly to Dallas to meet
Mr. Batton, the development plan was to be worked out within
a few days after the Dallas visit (Tab 186). It was during
that visit that Mr. Mighton advised Mr. Batton that the
Partnership would not take delivery of the 94 Enhancements
and that Marketing "was going to undertake the development
project."[90] Therefore, the Partnership did not pay the second
instalment owing under the Work Statement. This is confirmed in a
letter[91] by
Mr. Batton to Agensys T & C's lawyer, dated
March 22, 1995 (with a copy to Paul Mighton).
[88] Presumably, Mr. Mighton's trip
was discussed at the March 28, 1995, management meeting but
the minutes are not available, although they were approved at the
April 11, 1995, management meeting (Tab 191). During
this later meeting, Mr. McCann stated that he was going to
visit Mr. Kale in Phoenix on April 19, 1995, "to
review all aspects of Agensys. Howard [Kale] has advised
that there are 6 interfaces completed but we do not have
them in our office." Mr. McCann's May 1995 Report
from the Phoenix trip is reproduced in part in paragraph 49
above.[92] In a
memo dated May 23, 1995 from Mr. Mighton to
Mr. Gamble, the first following Mr. McCann's May
1995 Report, we find the following statement respecting the
status of the relationship with Mr. Kale and Agensys U.S.:
"It took 6 weeks of elasped [sic] time to come to
agreement on the working relationship among the Dallas office,
Howard and us. Milestones that will allow us to be successful
include . . ." (Tab 214).
[89] Minutes of meetings held in June and a
development plan dated July 31, 1995 reveal some cooperative
work with Mr. Kale with respect to implementing certain
enhancements, for instance, on the Sun Solaris platform, and with
respect to the "networked demo presentation". At the
annual general meeting of the Agensys Partnerships held on
July 5, 1995, there was talk of a proposed roll-up of
the Partnership and the Australian Partnership into a corporation
(Tab 245). In September 1995, Mr. Mighton prepared a
1995-1996 business plan for Marketing, including a proposed
development plan for the Software, which, to judge by its looks,
style and content, seems intended to promote new offerings of
Agensys Partnerships.
[90] On January 26, 1996,
Mr. Morley circulated among the members of the management
group the "1996 Planning Objectives" for, among other
things, corporate matters such as the roll-up of Agensys
Partnerships by the end of April 1996 (Tab 297). That
document also dealt with the development of the Software, which
would involve a significant contribution by CGI, a minor
contribution by one technical employee, Ron Mercier, and
none by Mr. Kale. Among the activities to be carried out by
CGI are "start client\server architecture design",
"complete Unix-DOS co-processing" and
"complete Phase I product enhancements". During a
demonstration for Revenue Canada on January 16, 1996,
Mr. Phil Irving of CGI had indicated, according to the
tax avoidance auditor, that CGI "will do maintenance"
and "CGI to assist in further development" of the
Software. However, in a letter dated November 3, 1997, CGI
wrote that "we were never engaged to develop new releases or
versions of the product" (Tab 418). Their
"engagement involved numerous activities such as: studying
the position of Agensys with the market place . . . developing
demonstration applications . . . and prioritizing future
enhancements to the Agensys product".
[91] From February 12 to 15, 1996,
Mr. Irving was in Arizona to meet with Mr. Kale. In his
report, he states: "This document summarizes the discussions
and the accomplishments of the initial handover work
period . . ."[93] [Emphasis added.] (Tab 306.) It describes ten
"deliverables"[94] that were obtained and states that
"10 pages of handwritten notes were made and
10 hours of conversations were recorded."
[92] The only other report prior to the
legal action brought on September 23, 1996, is the
August 13, 1996, Gillman report, which provides yet another
business plan analysis and also proposals (Tab 336). For
instance, Mr. Gillman describes the Software as
"Technologically Immature It need [sic] GUI,
Designer, Multi Platform, Internet". One of
Mr. Gillman's suggestions is "working hand in
glove" with Paul Blair of Phoenix. Mr. Gillman
describes as an obstacle "reliance on Howard Kale"
with respect to development issues, but states that "there
is no solution readily available here." He likewise sees as
an obstacle reliance on Mr. Kale regarding support issues
and suggests the following solution:
Let us concede the genius of Howard. He is a designer, not an
ongoing process and support type of person. A support
organization for our own development and for support of our
clients need [sic] to be established and maintained.
One or two of the new grads trained in Agensys will be
given extensive extra training and be designated the support
person for current and new development. He will be paid for by
Howard.
[Emphasis added.]
[93] So contrary to the claims made by
Mr. Gamble, Agensys and Mr. Kale did not stop providing
Support Software in mid-1996. According to
Mr. Barisheff, except for the user and reference guides
(delivered in 1992) and the Sun Solaris and SCO Unix
operating system delivered in 93/94 (in my view, more likely in
1994 and 1995), the Support Software was never delivered. If any
breach consisting in the non-delivery of most of the
Support Software existed, it was crystallized in March 1995 when
the Partnership was asked to pay the second instalment for the 94
Enhancements and refused. So it was not in mid-1996. If
there was a breach in March 1995 (as Mr. Morley testified),
action had to be taken at that time, a year and a half before the
notice of suit was filed September 1996.
[94] I keep saying "alleged
dispute" or "if any breach existed" because I am
not convinced that any such breach ever did exist. If it had,
mention of it would have been made in the offering memoranda of
the Agensys Partnerships. These Partnerships raised a substantial
sum of money after March 1995 and had entered into
acquisition agreements with Agensys T & C similar to the 1993
Acquisition Agreement. For instance, in the confidential offering
memorandum for Agensys (FR) 1995 Limited Partnership (French
Partnership),[95] dated September 11, 1995, and the one for the
Agensys (UK) 1995 Limited Partnership (U.K.
Partnership),[96] dated February 1, 1996, there is no mention of
any breach by Agensys T & C causing damages of
$155 million. For example, on February 1, 1996,
Mr. Gamble certified that he did not "omit to state a
material fact that is required to be stated" in the
confidential offering memorandum of the U.K. Partnership
(Exhibit A-4, page 34). If such serious breaches
causing $155 million of damages had existed, they would have
constituted a material fact which would have had an impact on the
value of the securities being offered by those partnerships.
[95] In my view, no such serious breaches
existed because I believe that there was no serious undertaking
to provide the Support Software. Given that the Software lacked
at the time of its purchase so many of the functionalities that
made it so singular and attractive, one would have expected the
purchaser to require that the vendor provide all the Support
Software according to an agreed delivery schedule. Here, the
parties only stipulated that the Support Software was to be
supplied on "written request" by the Partnership and no
such written request was ever made!
[96] Another indication that the covenants
were not serious is the fact that the "national advertising
and promotion campaign in the United States" (provided for
in article 4.5 of the 1993 Acquisition Agreement) was to
have taken place no later than June 30, 1994. In his
testimony, Mr. Barisheff recognized that the campaign had
not taken place by February 1996. So it seems that no one cared
if these "paper" covenants were fulfilled or not. This
attitude is also apparent in the preparation of the private
offering memoranda for the French and UK Partnerships' units
because a similar "paper" covenant appears in them and
no mention therein is made by Mr. Gamble of the fact that
this covenant had never been fulfilled in the past by Agensys
T & C (Page 11 of Exhibit A-4 and
A-6)!
[97] Be that as it may, how useful would a
national American campaign be if your business is being carried
on in France, the UK or Canada? Why would Agensys T & C have
given such an undertaking when it was to receive only royalty
payments from Agensys U.S. and no large up-front payments
such as the $6 million paid by the 12 Partnerships? In
any event, it could not force Agensys U.S. to launch such a
"national . . . campaign" because there is in their
agreement dated February 2, 1994, no covenant respecting
such a campaign.[97] The national American campaign covenant does not
appear to have any commercial reality.
[98] With respect to the promotional,
training and technical consultation obligations, only the latter
was an ongoing obligation. It called for "two
person - months per year." The promotional
activities obligation was for a two-year period and the
training obligation seems to have been limited to the initial
period (see paragraph 13 above).
[99] Another indication of the
non-inexistence of a breach of the 1993 Acquisition
Agreement is the lack of reaction to the alleged
non-execution of the covenants. From June 1993 to August
1996,[98] the
chronology of events described above reveals no evidence of a
written request to Agensys T & C or Mr. Kale to deliver
the Support Software[99] and to remedy the lack of technical or marketing
support or the failure to carry out the promised U.S. marketing
campaign. There is no evidence of any threat that failure to
remedy the breaches of the 1993 Acquisition Agreement woud lead
to legal proceedings being instituted. There is no evidence
either of any threat of legal action when Mr. Kale refused
on March 8, 1995, to fund Mr. McCann's contract for
the provision of his development services to the management
group. Mr. Gamble's only reaction was to pay
Mr. McCann through Marketing. Nor is there any evidence of a
threat of recourse to legal action to obtain delivery of the
94 Enhancements when, on March 22, 1995, the
Partnership refused to pay the second instalment for the
94 Enhancements, knowing full well that Agensys T & C had
refused to fund the development to be carried out by the
Partnership. Mr. Mighton, on his return from Dallas,
prepared a development plan for the management group. Eventhough
the Partnership had paid in December 1994 the first instalment
for the 94 Enhancements, of which delivery was not made,
there is no evidence either of any threat of taking legal action
to obtain a refund of that instalment, presumably paid by
mistake. (Or was it paid by mistake?)
[100] On the contrary, in his May 23, 1995, memo,
Mr. Mighton talks of "com[ing] to agreement on the
working relationship among the Dallas office, Howard and
us". Mr. Gamble and the rest of the management group
continued to talk to Mr. Kale, to meet with him, and to work
with him at least until February 1996, when there seems to have
been a friendly "handover" of Mr. Kale's
programming tools, his files, manuals and know-how. The
impression is that Mr. Kale was closing his shop and
retiring from active computer programming work, at least as far
as Agensys was concerned. On August 13, 1996,
Mr. Gillman suggested that Mr. Kale fund the cost for a
new graduate who would be the support person. The next event was
the legal action for $155 million. Is it possible that
Mr. Kale's refusal - yet another - this time
to pay for the "new grad" caused Mr. Gamble to
take legal action on behalf of the 12 Partnerships? Was this
breach worth the $155 million that the Partnership was
seeking? Was it worth agreeing, with respect to Agensys T & C,
to convert $11,190,000 of general recourse subscription notes to
limited recourse notes?[100]
[101] The lack of action in 1994 and 1995 is difficult
to explain. The Agensys Partnerships had paid and were paying to
Agensys T & C many hundreds of thousands of dollars every year
from 1993 to 1996 - $6 million altogether. Many
millions of dollars of Subscription Notes were allegedly owing to
Agensys T & C. One would thus have expected Mr. Gamble to
have been in a good bargaining position to force Agensys T & C
to live up to its obligations to the letter. Payments could have
been withheld on disbursements for other Agensys Partnerships.
Threat of non-payment on the Subscription Notes would have
been another possibility. In any event, it would have been in the
interest of Agensys T & C to provide the Partnership with all
the agreed upon Support Software, training and support because
the payments on the Subscription Notes were for the first
10 years dependent on net cash distributable to the
partners. On the other hand, if there was no real legal
obligation to pay these notes, then the situation would be
understandable.
[102] The circumstances surrounding the legal
proceedings also raise lot of suspicions. Within ten days of the
filing of the notice of action, the Partnership's lawyers
were informing their counterpart in the Turks and Caicos that
Messrs. Gamble and Barisheff had "worked out with
Howard Kale the structure for a proposed settlement"
(Tab 347). When asked if this was true, Mr. Gamble said
that it was not he but the Partnership's lawyers who had
worked out that structure. When Mr. Barisheff was asked for
his version, he said that it was the lawyers or Mr. Gamble.
So, nobody negotiated the structure for the settlement! Nobody
wanted to take credit for this quick and amazing achievement!
[103] The settlement of the alleged dispute was signed
on October 31, 1996, 38 days after the notice of action
was filed. It provided that a new corporation would be formed
(Agensys International) and that this corporation would acquire
for $1 all the world rights still possessed by Agensys T & C.[101] Agensys
T & C would use some of the funds, aggregating $907,270,[102] which had
been advanced in trust by some of the 11 Partnerships and
not yet paid out to Agensys T & C, to subscribe for
90,727 common shares in Agensys International. Those shares
represented only 0.09% of all common shares.[103] In addition, Agensys T & C
would transfer for $1 all worldwide rights to the Software and to
Kammand (which was acquired from Mr. Kale on the same date)
not then held by the 12 Partnerships. It should be recalled
that Agensys T & C's Operational Plan attached to the
February 8, 1995, Batton Memo shows a value of approximately
$95 million just for the U.S. rights of the Software. The
total price contemplated aggregated more than $228 million.
So the transfer for $1 of Agensys T & C's residual world
rights to the Software and Kammand does not make any sense. The
whole thing is just unreal. It has no commercial reality!
[104] All of this is astonishing enough in itself, but
not as astonishing as Agensys T & C's agreeing to modify
the partners' Subscription Notes and turn them into notes
with a limited recourse, that recourse being restricted to the
value of the Agensys International shares. Furthermore, not only
did Agensys T & C give up its right to receive from the Limited
Partners past interest on the Subscription Notes, it also waived
any future interest. When asked to explain how this extraordinary
result was achieved, Mr. Gamble indicated that it was
suggested by his lawyers at Fasken. Mr. Gamble's version
of events was not corroborated by Mr. Beach, who had
testified before Mr. Gamble and who had not been questioned
on this issue. No reasonable explanation was supplied during the
course of the hearings as to why a supposedly arm's length
party such as Agensys T & C would agree to forego its full
recourse against each of the Limited Partners in exchange for
limited recourse against the shares of a newly created private
corporation. Mr. Gamble's only explanation during the
hearing was that it was allowed under some new tax legislation.
Even if that were true, it does not explain why an arm's
length party would agree to grant such favourable terms to the
Limited Partners. Mr. Barisheff estimated the whole cost of
developing the Support Software at $2 million. So, even if
there was a valid covenant to deliver the Support Software,
Agensys T & C was giving up its general recourse of
$11.2 million and all interest thereon on account of a
breach of $2 million! And this is in addition to the
agreement by Agensys T & C to give up (for the nominal sum of
$1) its ownership of the Software and of Kammand, and its
remaining territorial rights, which included the U.S.[104]
[105] Finally, it should be noted that this whole
litigation took place in secrecy, without the knowledge of
Mr. Snape, who had just been hired as the new general
manager and of Mr. Morley, who had been part of the
management group since 1994 and had for a very long time been
critical of Mr. Kale and Mr. Batton of
Agensys U.S.
[106] To me, this whole dispute saga does not make any
sense. I draw two conclusions from the evidence on the dispute
and the settlement. First, I do not believe that Mr. Gamble,
as the controlling partner with respect to the affairs of the
Partnership and as one who had made a substantial investment as a
limited partner, and Agensys T & C ever intended that Agensys
T & C be required to deliver the Support Software to the
Partnership and to launch a national marketing campaign. In
addition, there was established no serious breach that would
justify the claim for $155 million, the legal action and the
subsequent settlement. I believe rather that the lawsuit
represents window dressing intended to support a conversion of
the general recourse Subscription Notes into limited recourse
notes and the waiver of interest.
(4) FMV of the Software
[107] One more reason why I do not believe that the
Acquisition Note created a true legal obligation and that Agensys
T & C intended to collect on its Subscription Notes is that, in
my opinion, the FMV of the Canadian marketing rights to the
Software did not exceed $960,000.
[108] This brings me to the subject of the two valuation
reports that were filed during the hearing as expert evidence
concerning the FMV of the Software. The first report (2003
Pritchard Evaluation or Report) was prepared by
Mr. Bob Pritchard, the same person who had prepared the
1993 Pritchard Evaluation which was referred to in the July 1993
offering memorandum. In the 1993 Pritchard Report,
Mr. Pritchard estimated a FMV of $14,875,000 as of May 31,
1993. This value is reduced in the 2003 Pritchard Evaluation to
$14,300,000 as of November 1993 due to charges in market
conditions. Counsel for the respondent objected to the filing of
this report because, in their view, Mr. Pritchard should not
be considered as an expert witness. Their main reason for so
contending was that Mr. Pritchard was neither a chartered
business valuator, nor a chartered financial analyst nor a
chartered accountant. I decided to allow the 2003 Pritchard
Evaluation in and let Mr. Pritchard testify after counsel
for Mr. Morley suggested that I should defer my decision on
its admissibility until after I had heard
Mr. Pritchard's evidence, to which counsel for the
respondent agreed. One factor that made it useful for
Mr. Pritchard to testify was that the respondent's
expert, Mr. Johnson, had relied on some of his projections.
Mr. Pritchard also gave factual evidence of what he saw and
did in 1993.
[109] On the question of Mr. Pritchard's status
as an expert, I conclude that he should not be recognized as
such, mainly because of his lack of certification in the field in
quesiton. I am also far from being convinced that he carried out
a thorough evaluation.[105] Even if I had accepted Mr. Pritchard as an
expert, I would not have adopted his opinion as to the value of
the Software. I believe that the value determined by
Mr. Johnson is a lot closer to the FMV of the Software
in 1993. As will be seen below, I do have some reservations about
even some of his assumptions, including the very generous cash
flow projections made by Mr. Pritchard and on which
Mr. Johnson relied. Mr. Johnson estimated the FMV as at
December 20, 1992, to have been between $900,000 and
$2.1 million. As stated in his report, if asked for a point
estimate, he would have selected the mid-point of that
range, namely $1.5 million. To establish the FMV of the
Software, Mr. Johnson, like Mr Pritchard, used the
discounted cash flow valuation methodology. Here are his
explanations and conclusions :
The discounted cash flow methodology involves forecasting the
annual discretionary cash flow (defined below) anticipated to be
generated from the Software for a period of time (the 'Forecast
Period', which in this case was 1992 through 2002) and
discounting those projected discretionary cash flows at a rate of
return that reflected the risks of achieving same. An
estimate is then made of the value of the discretionary cash
flows beyond the Forecast Period (i.e. beyond 2002), which is
referred to as the 'Terminal Value'. The Terminal Value is
determined by multiplying the expected average annual
discretionary cash flows to be generated beyond the Forecast
Period by a 'Terminal Value multiple'. The Terminal Value
component is then discounted to the Valuation Date. The sum
of the present value of the discretionary cash flows of the
Forecast Period plus the present value of the Terminal Value
represents the fair market value of the Software.
Given the issues surrounding the possible deficiencies of the
Software, and the possible shortcomings of the Pritchard
Projections, we determined the fair market value of the Software
using a two-step process:
·
as a starting point, we determined the Unadjusted Value[106] of the Software
assuming that:
ü
no deficiencies in the Software existed at the Valuation Date,
and
ü
the Pritchard Projections were reasonable.[107]
We calculated the 'Unadjusted Value' of the Software as the
sum of the present value of the discretionary cash flows of the
Forecast Period plus the present value of the Terminal Value,
based on the Pritchard Projections,[108] and based on rates of return that
we considered appropriate given the nature of the Software and
the market in which it would be sold; and
·
we then made adjustments (the Development Cost Adjustments) to
the Unadjusted Value to reflect the:
ü
Initial Development Costs required in order to remedy the
deficiencies of the Software at the Valuation Date, as set out in
the Brock Solutions Report,[109] and
ü
deficiency in the Pritchard Projections in respect of Ongoing
Development Costs that would be required in order for the
Software to remain competitive over the long term.[110]
The amount of the Development Cost Adjustments is calculated[111] as the sum
of the present value of the Initial Development Costs and Ongoing
Development Costs in the Forecast Period plus the present value
of the Ongoing Development Costs in the Terminal Value, based on
rates of return that are consistent with those adopted for the
purpose of calculating the Unadjusted Value.
In summary, the fair market value of the Software at the
Valuation Date is calculated as the Unadjusted Value less the
Development Cost Adjustments, as follows:
|
Low
|
High
|
Unadjusted Value of the Software
|
$1,600,000
|
$2,638,000
|
Less: Development Cost Adjustments
|
(708,000)
|
(514,000)
|
Fair Market Value of the Software (rounded)
|
$900,000
|
$2,100,000
|
[110] In order to determine his cash flow projections
and given that the Software had no track record,
Mr. Pritchard made assumptions with respect to the size of
the Canadian market for products such as the Software. Although
his projections for that market over a ten-year period were
characterized by him as close to the actual numbers that were
achieved and were considered reasonable by Mr. Johnson, one
of the key elements in determining the future cash flow from the
Software was an estimate of the rate of penetration of the
Canadian market by the Partnership. Different rates of
penetration were assumed by Mr. Pritchard for various
segments of the Canadian market. They varied from 0.1% in the
year 1993 of the ten-year period considered to 5% in the
year 1999 of that period; he acknowledged that these rates were
based on his "best guess as to what was reasonable." In
addition, it should be noted that his projections were based on
the product approach business plan, which was abandoned early
1994 and replaced by the consultating approach.[112]
[111] Once Mr. Pritchard determined what would be
the gross revenue from the Software over the ten-year
period, he then determined what would be the net cash flow by
estimating the expenses that would be incurred by the owner of
the Software during that period. He relied on his business
experience to come up with numbers which he described as
"built from the bottom up". They represented not a
percentage of income but what in his view was a fair estimate of
expenses. However, there are no development expenses in his
projections.[113]
[112] Once a net cash flow[114] had been estimated for the
ten-year period, Mr. Pritchard then determined what would be
a proper discount rate for calculating the net present value of
this future cash flow. He used a 20% discount rate, which
represented slightly more than twice the average rate of interest
then being paid on five-year government-insured
mortgages.
[113] Mr. Pritchard then computed the residual or
terminal value of the Software at the end of the ten-year
period. In order to establish that value, he decided to use the
net cash flow generated in the tenth year and determined that
this would represent a maintainable cash flow for the future, in
perpetuity. He then applied to that maintainable net cash flow a
multiple of 20. This multiple was less than the average price
earnings ratio for the Standard & Poor's 500 Index of
just over 23 in 1993. The value of the future cash flow
starting in the eleventh year represented a substantial amount:
$11,186,465 out of the value of $14,875,196 determined for the
Software, or approximately 75.2% of that value!
[114] As indicated above, Mr. Johnson redid
Mr. Pritchard's calculations of cash flow. He did so by
making basically three major adjustments.[115] First he made an adjustment to
the cash flow by adding development costs. Given that
Mr. Travers had identified deficiencies existing in the
Software at the valuation date, Mr. Johnson estimated that
initial development costs of $100,000 to $250,000 would be
required to remedy those deficiencies. These amounts represent
only a fraction of the total development costs required for that
purpose. This fraction amounts to 5.2% of the total and is the
Partnership's share "pursuant to its ability to be part
of a consortium of various parties[116] who collectively would be
prepared to fund most of the total Initial Development Cost. If
this were not the case, the Initial Development Costs may
exceeded [sic] the Unadjusted Value, which would cause the
fair market value of the Software to be nil." (Page 46
of the Johnson Report.)
[115] In addition to the initial development costs,
ongoing development costs had to be incurred "in order to
support the long-term competitiveness of the
Software". In this regard, Mr. Johnson assumed that
Agensys T & C would provide the required enhancements, as
envisaged in the 1993 Acquisition Agreement, and that the cost
would be a royalty type of payment in the range of 3% to 5% of
sales. This assessment of Mr. Johnson's appears very
reasonable, especially when one considers Mr. McCann's
suggestion (see paragraph 49 above) that "a minimum 20%
of revenues be allocated to the development activities."
[116] The second major modification made by
Mr. Johnson was to use a discount rate of 35% to 40%
(instead of the 20% adopted by Mr. Pritchard) for
determining the net present value of the cash flow, and multiples
of 9 and 11 (instead of the 20 adopted by Mr. Pritchard) for
determining the terminal value. With respect to the discount
rate, he came to his conclusion based upon his experience and
after having discussed the issue with venture capitalists who are
in the business of financing start-up software companies. Venture
capitalists would use a similar net cash flow model to evaluate a
corporation in which they are considering investing, even though
the corporation might be a one-software corporation. Such
venture capitalists would use a discount rate varying between 30%
and 50% or sometimes 60%. On the basis of his discussions with
venture capitalists, Mr. Johnson thought that a discount
rate of 35% to 40% would be reasonable. However, it should be
noted that when I questioned Mr. Johnson and brought it to
his attention that those discount rates were rates used for
valuating an operating corporation that had on staff qualified
personnel to develop and use the software, he acknowledged that
venture capitalists would not normally get involved in just a
straight purchase of software. They would always buy an operating
business.
[117] With respect to the multiple of 20 based on public
equity market price-earnings multiples adopted by
Mr. Pritchard, Mr. Johnson wrote that it was
unrealistic:
The use of price-earnings multiples of established,
diversified publicly held corporations is
fundamentally inconsistent with the valuation of a single
product with a restricted market, such as the Software.
Furthermore, . . . [this multiple] far exceeds the residual
value multiple of 5X that was used when determining the fair
market value of AGENSYS in other developed countries around
the same valuation date.[117]
[Emphasis added.]
[118] The third major adjustment made by
Mr. Johnson had to do with how the discount rate should be
applied. Mr. Pritchard had adopted an after-tax
multiple of 20 and applied it to a before-tax net cash
flow. Mr. Johnson applied his discount rates and the
multiples to the after-tax net cash flow. In his opinion,
this was required in order to ensure the internal cohesion of the
calculations and I agree with him.[118] For these purposes, he assumed
that a purchaser would be in a position to obtain tax savings
generated by claiming CCA.[119] Given that he had assumed that the Partnership
had acquired the Software in 1992 and given also the
half-year rule, the tax shield was enjoyed over a
two-year period and a positive cash flow resulted in 1992
and 1993.
[119] In my view, a more cautious approach should be
adopted. The asset being valued here is a software which had no
track record. It is true that the Software was a newer version of
an existing software, Kammand, that had been marketed to a
limited extent in the U.S. However, the Software was different
from Kammand because it had been rewritten using a different
language in order to give it portability and interoperability on
and with different platforms and database software, features that
Kammand did not have. So it was more like a new software. It was
also a software that had great limitations and that required
major enhancements to make it the attractive product it was
marketed as. Basically, it was a work-in-progress, at
a very early stage in its development.
[120] Even assuming that the Software was not that
different from Kammand, the Partnership was buying just a
software and not an operating business. As mentioned before,
venture capitalists would not have touched the Software without
the proper personnel being there to continue its development.
Here, not only did the Partnership not have on staff people who
had the knowledge to create the Software but it did not have the
programmers to create the business applications it wanted to
market to end-users. Whenever it was necessary to make a
presentation, the Partnership had to ask Mr. Kale or some
other U.S. or Canadian consultant to get the Software running. In
my view, purchasing a software alone, without the team that
created it, had the effect of increasing significantly the risk
which would normally be borne by venture capitalists. Therefore,
I believe that a higher discount rate should be adopted. A
minimum rate between 40% and 45% would be required in the
circumstances of this case.
[121] The cash flow projections are not based on an
existing business for which probable maintainable profit or cash
flow projections can be made. Here, even though one can forecast
fairly accurately how the whole industry is likely to develop
over a 10-year period, the determination of the market
penetration rate of a new product marketed by a new player in the
market (without the proper personnel) is more an act of blind
faith than any serious exercise in speculation.[120] The rate of penetration
depends on so many factors, including the competence of the
marketing force, the attributes of the product itself, the
financial resources of the marketer and the existence of serious
competitors.
[122] Furthermore, the projections made by
Mr. Pritchard are based on the assumption that the Software
would appeal to medium to large organizations primarily for use
in one of three distinct applications described at page 19 of the
Johnson Report:
·
client/server applications - at the Valuation Date many
organizations were rapidly moving towards client/server and
distributed applications. The move to client/server applications
was dictated by the replacement of terminals with intelligent
workstations. New client server applications could involve a
number of workstations and servers working together over a local
or wide area network. The Software claimed to be an ideal
solution for this application as a result of its platform
independence, which allowed it to pass data between different
technology platforms;
·
downsizing 'Legacy Applications' - the Software was designed for
projects involving the migration of terminal-based mainframe
applications to a distributed client/server environment; and
·
re-engineering of 'Legacy Applications' - at the Valuation Date
it was anticipated that forthcoming versions of the Software were
to be designed to specifically support the re-engineering of
legacy systems using distributed processes and data on
mainframes, servers and personal computers. The Software claimed
that it would provide unique middleware and messaging services
that would support the gradual re-engineering of mainframe
applications.
[123] In fact, as Mr. Johnson wrote at page 21
of his report: Mr. Travers "concluded that many of the
features required to be competitive for the applications and
customer base targeted by the Software were not resident in the
Software at the Valuation Date". Mr. Johnson added that
"the Software
· was best
suited for single user and small work group applications; and
· lacked
features that were critical to large and mid-sized companies who
were seeking to replace their legacy or mainframe
systems."[121]
[124] So it is quite appalling to find out that, in
Mr. Pritchard's projections, 80% of the sales projected by
him for 1994 and 1995 are shown as coming from mainframe accounts
(government and other) and mid-range accounts (government
and other). Needless to say, this does little for the credibility
to Mr. Pritchard's work.
[125] In addition, I find it difficult to give much
residual value to a software that was purchased by a team that
did not have the in-house know-how to build and
develop it and was dependent upon a non-resident
corporation established in the Turks and Caicos Islands without
any employee for ensuring its development. Likewise,
consideration has to be given to the fact that the Software was
facing competition from well-established companies marketing
established software. The Canadian market for programming
software such as the Software was, at that time, a crowded
market.[122] In
my view, it would have been very difficult for a new company with
a new software to establish itself in that market and to compete
in it against competitors with strong financial backing. The
likelihood of there being any residual value after ten years was
very slim. The history of software is full of cases of good
software that could not survive more than a few years. It is also
important to give some weight to the information that
Mr. Johnson obtained from Mr. Batton, the president of
Agensys U.S., who had a very good knowledge of the Software[123] and who
estimated that its expected life was about seven or eight years[124] and that
there was an 80% to 85% risk of failure.
[126] There is also the following statement found in a
technical white paper prepared by Object Systems Inc.:[125]
Software Project Failure Rates
The U.S. National Research Council recently reported that up
to 95% of all software projects are not satisfactorily completed
in time to be of any use to their intended users. The software
industry responded indignantly that the actual failure rate was
only 70% of all projects that are started. Regardless of whose
numbers you use, the failure rate for software projects is
totally unacceptable and would not be tolerated from any other
professional discipline.
[127] In my view, higher discount rates such as 40% and
45% have to be used to take into account the higher risk involved
in acquiring a product with only limited territorial rights as
opposed to a corporation, even a one-software corporation.
Furthermore, given the high risk of a short life on the market,
the use of lower multiples, such as 7 and 9, to evaluate future
cash flow after the forecast period would be more
appropriate.
[128] One more modification that I feel is required to
the computation of FMV made by Mr. Johnson is with respect
to the adjustment to take into account the initial development
cost for remedying the defects identified by Mr. Travers.
For the following reasons, I believe that adjustment should be
omitted. First, I am not comfortable with the estimate of the
cost for correcting such defects. Not enough information is
available to allow one to come to any conclusion in this regard.
Another reason for my discomfort is that a full adjustment is
made for the lower value and only a partial one for the higher
one. Finally, I believe that a vendor has the obligation to
deliver a functional software and, therefore, has the obligation
to correct any initial defects in the software. In any event, I
have adopted a higher discount rate and that compensates in part
for the elimination of the initial development cost adjustment;
Mr. Johnson would have done likewise had he not taken this
factor into account. [126]
[129] Finally, Mr. Johnson's evaluation was
made as of December 20, 1992. As I have concluded that the
Software was not acquired before June 30, 1993, when the restated
Acquisition Agreement was executed, Mr. Johnson's
computations have to be modified accordingly; in particular, the
tax shield for the cost of the Software has to be deferred by one
year.
[130] As appears in greater detail in the tables
appended to these reasons, the FMV resulting from the above
adjustments to Mr. Johnson's calculations would be as
follows :
|
Low
|
High
|
Unadjusted Value of the Software
|
$798,500
|
$1,356,000
|
Less: Development Cost Adjustments
|
(250,900)
|
(220,900)
|
Fair Market Value of the Software (rounded)
|
$548,000
|
$1,135,000
|
[131] The mid-point value of this range of FMV would be
$841,500. So, in my view, it is clear that the FMV of the
Software acquired from Agensys T & C could not have been more
than $960,000, the amount paid in cash by the Partnership. That
amount is within my range and that established by
Mr. Johnson. For the reasons already mentioned, the Software
may well be worth much less than that amount of $960,000.
Therefore, the fact that it was not worth more than $960,000
makes it very unlikely that the parties would have agreed to an
amount in excess of $960,000. This constitutes one more element
justifying my conclusion that the parties did not intend to
create a binding obligation to pay the balance owing on the
purchase of the Software, that is, $11,190,000, a number almost
equal to the terminal value as computed by
Mr. Pritchard.
(5) Corroboration by Partner
A
[132] In addition to the fact that the Limited Partners
were never asked to pay any money, interest included, owing on
the Subscription Notes, the fact that no representative of
Agensys T & C testified to demolish the facts that the Minister
assumed - in particular the allegation that Agensys T & C
never had any intention of collecting on the Subscription
Notes - and the fact that the FMV of the Software was not in
excess of $960,000, there is confirmation by Partner A,
referred to in the SI Information Statement (Tab 412), that
the Limited Partners would not have to pay their Subscription
Notes. Partner A held units in several of the
12 Partnerships including the Partnership.[127] After receiving his
assessment from the Minister, he spoke to one of the
Minister's officers in the tax avoidance section and
confirmed to him that he "was not feeling well about this
[Partnership] and thought that it might be a scam".
Partner A also stated that he was told verbally that the
amount owing on the Subscription Notes "payable in
10 years would never be collected and that this amount would
be forgiven". Even though interest would have to be paid on
subsequent limited partnership offerings, due to new legislation,
it would be "given back . . . 'under the
table'".
[133] It is true that Partner A stated in a
subsequent affidavit that "at no time did I provide
independent information . . . to support the contention that I
knew[128] that the Agensys Limited Partnerships were a
'scam'" (Exhibit A-27). However, he never
recanted his specific statements regarding the
non-collection on the Subscription Notes and the
reimbursement of the interest under the table.
[134] It is unfortunate that neither the tax avoidance
auditor nor Partner A testified in court. When asked during
argument why Partner A had not testified, counsel for the
respondent indicated that he did not know. He added "[w]hile
I think you could rely on it [the assertion attributed to
Partner A in the SI Information Statement that the amount
owing on the Subscription Notes would never be collected and
would be forgiven], I think it should be a question of weight
Your Honour". Counsel for Mr. Morley stated in his
argument that "there were many hundreds if not thousands of
pages of documents contained in the joint book of documents and
they were filed and became part of the evidence before this
court." The SI Information Statement is filed in that
"joint book" of documents at Tab 412, which is one
of the last tabs of Binder 12. The subsequent affidavit was
filed during argument, with the consent of counsel for the
respondent, after I had raised the disturbing discovery of the
above-mentioned statement.
[135] I cannot give a lot of evidentiary weight to
either the statement in the SI Information Statement or the
statement in the affidavit, given that Partner A and the tax
avoidance auditor whom he met did not testify before me and given
the damaging nature of those statements. However, in view of my
analysis of the circumstantial evidence, Mr. Gamble's
lack of credibility, and the inference I draw from them, I
consider Partner A's statement described in the SI
Information Statement as one more element supporting and
justifying my conclusion on the true cost of the Software.
(6) At Best a Contingent
Obligation
[136] Consequently, I do not believe that Agensys
T & C ever intended to collect more than $960,000 for the sale
of the Canadian rights to the Software to the Partnership. The
Acquisition Note and the Subscription Notes which replaced it did
not constitute a binding agreement. If anything, they were at
best a contingent covenant for a royalty type of payment or, to
use the words of the Agensys T & C Operational Plan
(paragraph 22 above), "the payment of a loan
agreement that comes out of a royalty agreement" on the
sales of the Software. This contingent obligation cannot be part
of the cost of the Software.[129]
(D) Subsection 69(1) and
Non-Arm's-Length Relationships
[137] I believe that the conclusion I have reached with
respect to the true cost of the acquisition of the software does
not require that I deal with the application of
subsection 69(1) of the Act. However, if it had been
required, I would have certainly come to the conclusion that a
non-arm's-length relationship existed between the
Partnership and Agensys T & C and that the FMV could not have
exceeded $960,000.
[138] In coming to that conclusion, I would have relied
on the circumstances described above and, in addition, on the
very non-commercial nature of the terms of the Acquisition
Note and the Subscription Notes. When I questioned
Mr. Barisheff on this, he acknowledged that he had not
encountered such terms in any of the many securities and real
estate transactions in which he had been involved. In his written
submissions, counsel for the respondent provided the following
review of the case law dealing with the notion of arm's
length in situations similar to this case. I will cite
paragraphs 10 to 16 of his notes:
B. Arm's Length
& section 69
10. Whether Agensys Canada
and Agensys Corporation dealt at arm's length is a question of
fact, as prescribed by paragraph 251(1)(c) Income Tax Act
(paragraph 251(b) in 1993). In Brown v.
Canada, [2001] T.C.J. No. 763 [Tab 1] Judge Rip
identified a number of factors, many, if not all of which, exist
in the Morley appeal so as to denote a non-arm's length
relationship:
§ Inflated
promissory note over term exceeding the shelf life of the
software;
§ Disparity
between purchase price and estimated FMV;
§ Other
additional factors such as arbitrary decision making as to which
game platforms were to be included in the purchase and sale and
apparent disorganization in determining game titles.
11. With regard to the
promissory notes, Judge Rip observed as follows at paragraph 79
of Brown:
The Acquisition Note was not a debt instrument that would have
been transacted by parties at arm's length. The Acquisition
Note was to mature on December 31, 2003, ten years after the
transaction and beyond the time when it was reasonable to assume
that the computer games would generate income. Mr. Main expected
the market for the 16-bit machines to last five years; Mr.
Grossman expected the 16-bit market to continue until 1996. The
note was not assignable and the security for the note was units
of the Partnership. There was no evidence that was reasonable to
conclude that an arm's length vendor would agree to defer the
balance of the purchase price for the computer programs,
approximately US$5,000,000, on the strength of such a note.
The Respondent would submit that the above passage is directly
applicable to the within appeal.
12. Finally, Judge Rip
considered the following additional factors, at paragraph 79
[sic, actually 80], in determining the existence of a
non-arm's length relationship:
There were also transactions after 1993 which suggest that ASC
and [the partnership] were not dealing at arm's length.
This includes the exchange of an unknown and presumably
unsuccessful computer program by the partnership for the Super
Copa game, a game which had already been marketed under other
names and the apparent arbitrary inclusion of games to be played
on the Pico platform without approval by, or prior notice to, the
partners. Games and their titles were also not determined
until after 1993.
Agensys Canada's apparent disinterest in whether it was
purchasing "Kammand" or "Agensys", and the
differences, if any, between them, is noteworthy in this
regard.
13. Petro Canada v.
The Queen (2002), 2003 DTC 94 [Tab 4] provides further
guidance. The Appellant in that case purchased seismic data at an
allegedly inflated price for purpose of advantageous CCA
[sic, actually CEE] treatment. The purchase price was
$46,751,752.00 whereas FMV was determined at $8,884,497.00. On
the "arm's length" issue, the court made reference to
the following facts: (i) the Appellant's [sic] could
provide no specifics of where and when the data was actually
utilized (paragraph 71); (ii) the purchaser evidently purchased
the data without any concern about the location of where the data
came from (paragraph 72); (iii) the Appellant's [sic] only
actually made use of approximately 6% of the data it purchased
(para 73); (iv) "[t]here was no evidence to show that the
[purchaser] made any serious effort to bargain with vendors as to
prices paid for the seismic data" (para 83); (v) the
selection of the data to be provided was left to the vendor to
decide (para 84); (vi) it was in both the vendor's and
purchaser's interests to set as high a purchase price "as
the parties could justify" (paragraph 85); (vii) the funds
to pay for the actual development or use of the data was to come
through the advantageous CEE treatment (paragraph 85).
14. Judge Bowie concluded
at paragraph 82 that "the evidence leaves no doubt that
[the] transactions did not reflect ordinary commercial
dealings between the vendors and the purchasers acting in their
own interests and so were not at arm's length" [emphasis
added].
15. Finally, at paragraph
19 of Gestion v. Canada, [2000] T.C.J. No. 872 [Tab
5] the Court observed that the "failure to carry out a
transaction at FMV may be indicative of a non-arm's length
transaction."[130] The Respondent would submit that the marked
disparity between the Respondent's valuation, and the stated
purchase price of the software, calls into question whether the
software was purchased for FMV.
16. In concluding that an
arm's length relationship existed the Court was persuaded by the
absence of "special circumstances"[131] signalling the existence of
a non-arm's length relationship. The Court emphasized that
evidence of "collusion, scheming, or underhand[ed]
dealing[s]" would indicate a non-arm's length
relationship.
[139] Also, it is interesting to note the following
comments made by counsel for Mr. Morley in his written
submissions:
It is submitted that in interpreting these two provisions
paragraph 69(1)(a) and paragraph 251(1)(b), the obvious
sequence in determining whether actual cost should be replaced by
fair market value would be to determine first whether the
purchaser and vendor were acting at arm's length and then, if it
is found that they were not, either because they were related or
did not deal with each [sic] at arm's length as a factual
matter, then subsection 69(1) could be applied.
The Respondent's position, however, appears to be the reverse
- that is, that we should look at whether the property acquired
had a fair market value equal to the cost to the purchaser and if
it did not, then we can necessarily conclude, that the parties
were not acting at arm's length. The Respondent's approach
appears to work backwards and suggests that if a lack of fair
market value can be demonstrated, this is essentially conclusive
evidence that the parties were not acting at arm's length.
It is submitted that this reversal of the obvious intent of
the legislation is to be avoided or, at a minimum, adopted with
great caution. Section 69 should not be applied unless there are
factors external to section 69 itself which support a finding
that the parties were not acting at arm's length.
Although the fair market value of the property in question for
purposes of subsection 69(1) may be a factor to be taken into
account, it should not, in and by itself, be conclusive of a
non-arm's-length relationship which then, in turn, permits the
Respondent to rely on subsection 69(1). This, I submit, is what
the Respondent has attempted to do, as reflected in the argument
put forward on behalf of the Respondent. During that argument, no
basis for applying subsection 69(1) was raised other than that
the purchase price paid for the Agensys software by the
Partnership exceeded fair market value.
[140] I agree with the statement by counsel for
Mr. Morley in his written submissions that the existence of
a discrepancy between the FMV and the price paid should not in
and of itself be conclusive as to the existence of a
non-arm's-length relationship. It would be
dangerous to apply subsection 69(1) in such circumstances.
However, I also agree that such a discrepancy is a factor to be
taken into account; it should be considered in combination with
other indications that the price was not determined under
conditions in which two competing interests were involved. It
should be acknowledged that it is difficult to determine whether
one party was exerting undue influence on the other when the
price was being negotiated, especially when there is no
appearance of any blood relationship, or of any financial or
economic relationship between the two parties. However, in the
determination as to whether the price was fixed under appropriate
circumstances, a large discrepancy between the price arrived at
and the FMV of the asset should certainly be a very relevant
factor to take into account.
(E) Section 67 and
Reasonableness of Expenses
[141] Given that the respondent has been successful on
the issue of the true cost of the Software and would likewise
have been successful under subsection 69(1) had it been
necessary to apply that provision, I will make no ruling
regarding the application of section 67 since I have some
doubt as to its applicability in these circumstances and since no
cases dealing with this issue were drawn to my attention.[132] In my view, it is
clear that an allowance would not represent an outlay or an
expense and therefore it is possible, at least on a narrow
interpretation of section 67, that it should not be
applicable. However, a good argument could well be made that
section 67 is applicable with respect to the cost of the
acquisition of the Software itself.[133] Given my conclusions above and
the fact that this issue was not properly debated before me, I
have decided not to resolve it in these appeals.
(F) At-Risk
Amount
[142] I do not believe that it is necessary to resort to
the application of subsection 96(2.1) of the Act given that
I have concluded that the cost of the Software did not exceed
$960,000. In these circumstances, Mr. Morley's share of the
Partnership losses is not likely to be in excess of his monetary
contribution to, and liability toward, the Partnership.
(G) Was the Software available
for use in 1993?
[143] In assessing Mr. Morley, the Minister relied,
inter alia, on the following assumptions in
paragraph 21 of the Reply to the Amended Notice of Appeal,
on the basis of which he concluded that the Software was not
available for use in 1993:
(mm) the alleged Partnership has not
developed a marketable product nor does the alleged Partnership
have the financial resources necessary to develop and market any
product;
(nn) from the time of the
acquisition of the Canadian copyright in the Agensys software to
the present time, the alleged Partnership has never used the
Canadian copyright for the purpose of earning income;
(oo) from the time of the
acquisition of the Canadian copyright by the alleged Partnership,
the Agensys software was not available or ready for commercial
use or sale.
[144] The relevant statutory provisions for determining
this issue are subsections 13(26) and (27) of the Act:
13(26) Restriction on deduction before available for
use.
In applying the definition "undepreciated capital
cost" in subsection (21) for the purpose of paragraph
20(1)(a) and any regulations made for the purpose of that
paragraph, in computing a taxpayer's income for a taxation
year from a business or property, no amount shall be included
in calculating the undepreciated capital cost to the taxpayer of
depreciable property of a prescribed class in respect of the
capital cost to the taxpayer of a property of that class (other
than property that is a certified production, as defined by
regulations made for the purpose of paragraph 20(1)(a))
before the time the property is considered to have become
available for use by the taxpayer.
13(27) Interpretation - available for use.
For the purposes of subsection (26) and subject to subsection
(29), property (other than a building or part thereof)
acquired by a taxpayer shall be considered to have become
available for use by the taxpayer at the earliest of
(a) the
time the property is first used by the taxpayer for the
purpose of earning income,
. . .
(d) the
time the property
(i) is
delivered to the taxpayer, or to a person or partnership (in
this paragraph referred to as the "other person") that
will use the property for the benefit of the taxpayer, or, where
the property is not of a type that is deliverable, is made
available to the taxpayer or the other person, and
(ii) is
capable, either alone or in combination with other
property in the possession at that time of the taxpayer or the
other person, of being used by or for the benefit of
the taxpayer or the other person to produce a
commercially saleable product or to perform a commercially
saleable service, including an intermediate product or
service that is used or consumed, or to be used or consumed, by
or for the benefit of the taxpayer or the other person in
producing or performing any such product or service.
[Emphasis added.]
[145] There is some evidence that the Partnership had
some object codes for the Software late in 1992. Mr. Gamble
said the following in his testimony:
We had the object code provided to us actually as a test basis
as early as October 1992. And we received absolute final
up-to-date object code in December of 1992.
So that we had it with all the user manuals, everything that we
needed to produce applications. (Mr. Gamble's
transcript, pp. 501-502)
[Emphasis added.]
[146] Is this version of the facts corroborated by the
rest of the evidence? What was the status of these codes? Did the
Software exist only in a beta version? Was it just a demo version
with many defects (bugs), or was it a fully operational software
capable of being used to produce a commercially saleable product
or to perform a commercially saleable service?
[147] In my view, the best evidence introduced by
Mr. Morley's counsel to establish that the Software was
available for use in 1993 is Mr. Karnis's expert report
relating to the Software as it existed in November 1993. That
version of the Software (1993 Software) was compiled by
him from source codes apparently held in escrow in 1993 in the
Turks and Caicos Islands by Temple Trust. The technical
identification of this compiled version is:
AGENSYS-PRO-DOS, Rel. 3, Ver.
12.69TCX4-GDEMO, 11-1-93.
[148] More specifically, Mr. Karnis was asked to
determine whether the 1993 Software was capable of creating,
running and enhancing a large, complex application. To answer
this question, Mr. Karnis attempted to run on the 1993
Software the Runtime Version of AGS Mortgage, which was created
between 1996 and 1998 by Agensys International using the
Development Version of the Software then in existence (1997
Software), in order to determine whether that application
could have been created with the 1993 Software.[134] When he attempted to do so,
he identified several computer defects. One of these resulted in
a loss of "minor screen embellishments". The more
serious one was a defect in one particular instruction
(KMD-PR0G), which was found to occur 102 times in
70,314 lines of code in AGS Mortgage.[135] The purpose of that
instruction was to suspend the current program to execute a
subprogram. When the subprogram terminated, the current program
was allowed to continue. Mr. Karnis found that this bug
caused the 1993 Software "to stop functioning after
approximately 28 executions of this instruction". He
described the solution in the following terms at page 3 of his
report (Exhibit A-15):
We developed a work around for KMD-PROG by using a similar
(but not identical) Agensys instruction SUB-PROG. We
successfully remediated one occurrence of KMD-PROG
with SUB-PROG. Had we more time and resources we could
have remediated all occurrences of KMD-PROG with
SUB-PROG by restructuring the [AGS Mortgage] application.
This single fix resulted in 5 additional lines of code being
added to [AGS Mortgage].
As time and resources were limited, we attempted to
identify and repair the actual cause of the KMD-PROG
defect. We were able to determine that the defect was caused by a
simple programming error in [the 1993 Software] (a memory leak).
However, we were unable to develop a fix for the problem in
the time available.
[Emphasis added.]
[149] Mr. Karnis added that this bug was actually
corrected "sometime between 1993 and 1996" and that AGS
Mortgage used on the 1997 Software "was subjected to
extensive testing and use" and did not exhibit the same
defect. He then concluded as follows at page 6 of his report:
Ongoing maintenance is part of any large software project and
I believe the occurrence of a single defect in all of Agensys in
no way detracts from the Agensys' overall technical merits as
an application development tool.
Opinion
In my opinion, it is possible to use [the 1993
Software] to create, maintain, enhance and execute [AGS Mortgage]
and that doing so would not require a significant increase in the
amount of program code.
[Bold characters added by Mr. Karnis.]
[150] Mr. Bruce Travers of Brock Solutions was
asked by the respondent to assist in the valuation of the 1993
Software. His evaluation focused on two areas:
•
Evaluating the claims made in the AGENSYS marketing and technical
documentation by the Department of Justice.
•
Positioning AGENSYS relative to competitive products at the
Valuation Date.
To evaluate AGENSYS we:
• Created
a basic payroll application to test AGENSYS functions and
explore its capabilities and limitations
•
Reviewed sample applications provided with the software
•
Compared AGENSYS' functionality to that of competitors listed in
the "KAMMAND Competitor Notes". (Page 1 of his report
(Exhibit R-5))
[Emphasis added.]
[151] Here are some of Mr. Travers'
conclusions:
During the development of our payroll application, we gained
an understanding of the capabilities and limitations of AGENSYS.
The following conclusions were reached:
• It is
possible to build business applications using AGENSYS.
. . .
• AGENSYS
is a programming language consisting of over 100 commands and 80
sub commands. We tested approximately 50% of the AGENSYS
commands. The commands we tested, worked as described in the
technical manuals.
. . .
• AGENSYS
Application Designer is basically an extension to the Documenting
Utilities. AGENSYS does not include data modeling capabilities,
which are the foundation of most application design tools. We
experienced several software bugs when using Application
Designer.[136] No instructions were provided on the use of
Application Designer.
. . .
• The
version of AGENSYS we tested had two major technical
shortcomings that would limit its use at large to mid sized
organization[s]:
§
It did not interface with any of the popular databases
(e.g. Oracle, IMS, Sybase, DB2, etc.). These databases are used
to store the majority of the computer-based information found in
large to mid size companies. Without these interfaces, data must
be copied from external databases into AGENSYS using the
"Transfer Files" utility. This results in duplication
of data. Data duplication always raises questions of "which
file is correct?" when files that should be identical are
not. Data duplication should be avoided.
§
It did not journalize transactions - This functionality is
critical to large-scale commercial applications. Journaling is a
process whereby transactions that change data in a database are
logged or journalized in a separate file. The Journal file is
always located on a different disk drive than the database files.
If the system fails due to disk failure, the database can be
rebuilt by reloading the latest backup, then reprocessing the
journal entries since the last backup. Without journaling, users
must manually re-enter all transactions.
Therefore AGENSYS is not suited for use by large and mid
sized companies seeking to replace their legacy or mainframe
systems.
· AGENSYS
is best suited for the development of single user or small
work group applications with small transaction volumes.
[Emphasis added.]
[152] It is important to state that the Court is not
bound by any expert evidence. It is up to this Court to decide if
the legal requirements of subsections 13(26) and (27) of the
Act have been satisfied, taking into account the expert opinions
and all the other evidence introduced by both parties at the
hearing. It should also be noted that neither expert was asked
specifically whether the Software was complete or capable of
being used to a produce a "commercially saleable
product" or to perform a "commercially saleable
service". So let us review the whole of the evidence to make
that determination.
[153] First, the Software was never sold by the
Partnership to anybody. Not only that, but there is no evidence
either that a sale was close to being made or could have been
made. On the contrary, Mr. Gamble acknowledged that the
Partnership was not close to any sale from 1993 to 1995. (See
par. 45 above.) Nor is there any evidence that a price list
was prepared by the Partnership. The only price list that was
filed as an exhibit is dated April 1, 1997, and was prepared
by Agensys International (Tab 380). Second, the first
application ever created or developed with the Software was
started sometime in 1996 and only completed in late 1997 or early
1998. That raises a serious doubt as to whether the Described
Software was complete at the end of 1993. The fact that it was
not complete may well explain why no sales took place in 1993,
1994 and 1995. It could well explain to a large extent why no
business application was ever developed with the Software in that
same period. It was only in the latter part of 1996 that the
first steps toward creating AGS Mortgage were taken.
[154] The analysis of the internal memos, minutes of
management meetings, reports and correspondence written from 1994
to 1996 does not alleviate these concerns. Quite the contrary.
The picture painted by all the above-cited extracts (in
particular in paragraphs 42 to 53) from such documents does
not favour Mr. Morley's position. I will reproduce again
here the most salient portions of those extracts and add one
other excerpt: "[T]he immense amount of work that has to be
done before a successful Canadian launch is possible. . . He
asked for a presentation when AC is operational" (January
17, 199[4]). "The information that Terry [Stanhope of Object
Systems Inc.] will be bringing back from his USA trip will likely
confirm that AGENSYS is not capable of performing as advertised.
Some existing software will likely have to be debugged. For
example, Paul mentioned that the AGENSYS Unix version that Howard
claimed was finished, developed a bug on the first command that
Paul entered. . . .The availability of software that we thought
was developed because of Howard's statements or because of
claims in our literature, need [sic] to be confirmed. . .
[W]e had no way of verifying whether the claims that we have been
making about its capabilities were fact or fiction"
(August 8, 1994). "We have concluded that if potential
customers were given AGENSYS for a day or two for the purpose of
making a decision to buy or not, then they would decide not to
buy. The documentation doesn't compete with today's
standards set by Apple and Microsoft" (September 6,
1994). "I told Larry [Gamble] and Nick [Barisheff] in July,
1994, that I had no intention of going back into the Federal
Sector market place until we had a product where we could
give a hands on demonstration of our claims, . . . Until I have
seen the demos that Gary McCann is preparing and the marketing,
demo presentation and sales being put together by Paul, I will
not commit ourselves to going back into the Ottawa market. . . .
Paul and Gary are currently in Dallas to help confirm what we
have in terms of software and what still needs to be done"
(March 23, 1995). [Emphasis added.] "The User Manual is
now completed and currently being printed. Advised that there are
functions on Agensys that does [sic] not work but has been
told by Howard they are there. Gary to review with Howard also. .
. . Gary to determine whether or not we do have a stabilized
version of Agensys after visit with Howard"
(Tab 191, April 11, 1995). [Emphasis added.] "Once
all the technical problems are solved and the products clearly
defined to the marketplace, we should be in a position to exploit
the product benefits" (August 13, 1996).
[155] In my view, only a demo version of an incomplete
software was made available to the Partnership in 1993. The fact
that the technical description of the 1993 Software examined by
the experts for the purposes of these appeals includes the word
"DEMO" is a first indication that the Described
Software was an unfinished product at the end of 1993. When
consultants were hired between June and August 1994 to evaluate
the Described Software's user interface and its
documentation, they were using these two versions:
Version 15.24 NTCX12DEMO and 15.59 PXN90DEMO. So more than a
year after the Software was acquired, still only "demo
versions" were available, which would tend to confirm that
the final version of the Described Software had not yet been
completed.
[156] Second, contrary to the impression that was
intended to be created by the 1992 and 1993 Acquisition
Agreements, the Software source codes were not delivered in 1992
or 1993, and one of the reasons for this, in my view, was that
work remained to be done to complete the development of the
Described Software. It should be recalled that, pursuant to the
1992 Acquisition Agreement, the source codes were supposed to
have been delivered within three days of the execution of that
agreement (Tab 55, subtab 6, par. 5). They were
not. It is stated in article 3.2 of the 1993 Acquisition
Agreement dated June 30, 1993, that the "Vendor
has by modem electronically delivered to the
Partnership, and the Partnership hereby acknowledges
receipt, of . . . the Source Code". [Emphasis added.]
This is a false statement. At the hearing, Mr. Gamble
acknowledged that the delivery only took place around
December 20, 1993, when he visited the Turks and Caicos
Islands.
[157] Actually, the source codes were not even delivered
to him on that date, rather, they were delivered to Temple Trust
to be held in escrow under certain conditions pursuant to the
"as of the 20th day of December, 1992" escrow agreement
(Tab 43). Under that agreement, the source codes could not
be released without the mutual consent of the parties. So Agensys
T & C had to agree and could, therefore, refuse. The agreement
also described certain circumstances, such as the
"occurrence and continuance of a material breach by Agensys
[T & C]" under which either party could obtain the source
codes. That is not what I would call delivery of the source codes
to the Partnership. It is more like a halfway measure to protect
to a certain extent both Agensys T & C and the Partnership.
[158] Third, another indication that the Described
Software was still in its development phase and had not been
completed is the fact that, as of February 8, 1995, no
acceptance test procedure had yet been carried out "to
verify the [Software] [was] functional" so that it could
"be deemed acceptable" and the "Partnership[s]
... be whole". These words do not come from the 1993
Acquisition Agreement, as one would have expected. Quite
surprisingly, that agreement is silent on the matter. They come
instead from an undated memo (93 Acceptance Test Memo)
(Tab 60) which describes in detail the acceptance test
procedure for the Software and the 94 Enhancements. Given
its importance, I will reproduce that memo in full:
To: Larry Gamble
From: John Batton
Subject: SE Support
Attached please find a chart depicting the events that are
proposed to occur over the next few weeks. This chart also
reflects the items we have discussed and agreed to be
accomplished prior to those events taking place. It is our belief
that all of the actions can take place remotely prior to the
demonstration support requested. The following is an explanation
of that graph:
Agree to the details of the '93 Acceptance -
The following acceptance test will be conducted on the
Deliverables:
Platforms: The Platform C or C: : compilers
(MS-DOS and SCO/UNIX[137] in character mode) will have
to successfully compile the Agensys Development System Source
Code. The compiled Platform Executables (MS-DOS and
SCO/UNIX) will have to successfully execute the Agensys
Development Test Suite to verify the Agensys Development
System is functional. The Agensys Development System Test
Suite contains and uses the Security System and the Design System
as applications to run within AGS (runtime) to exercise it fully.
The Test Suite also has a series of applications that will
exercise each verb and verify that they perform according to
specification.
Execute the '93 Acceptance Test -. Upon
successful completion of the Agensys Development System Test
Suite. [sic] he Agensys Development System will be deemed
acceptable.
Preserve the '93 Partnerships - Upon completion of
the '93 Acceptance Test the '93 Partnerships[138]will be whole.
Release '94 Funding - The monies collected for
the purchase of partnership units in the '94 selling
season shall be released to the Agensys Corporation. No
further action can be taken until these funds are received in the
bank accounts of the Agensys Corporation.
Access of Any Partnerships to '94
Deliverables - All beta software in the Canadian
Office will cease to function on April 1, 1994.
This software was loaned to Agensys Canada for demo
purposes in December of 1994 in beta form. This software is
ready to be delivered to Agensys Corporation for acceptance
testing according to the Statement of Work.[139]
[Emphasis added.]
[159] The acceptance test procedure is the usual
practice to follow when one pays a substantial price for a
software.[140]
That is what was done when Agensys T & C delivered the 94
Enhancements on December 1, 1994 (Tab 145). One half of
the price was owing on delivery of the beta copies and the
balance "upon completion and acceptance of the
project". The 1994 Development Agreement (Tab 68)
pursuant to which the 94 Enhancements were delivered
contains this clause:
Section 8
DELIVERY AND ACCEPTANCE
Developer shall deliver all Deliverables specified in the Work
Statement, upon completion, to Sponsor's Technical
Coordinator for testing and acceptance. Developer shall
memorialize such delivery in a Delivery Confirmation that
sets forth the nature and condition of the Deliverables, the
medium of delivery, and the date of their delivery.
Sponsor's Technical Coordinator shall countersign such
Delivery Confirmation so as to indicate its receipt of the
contents described therein, and the Delivery Confirmation shall
thereupon be transmitted to the parties' Contract
Coordinators. Unless a different procedure for testing and
acceptance is set forth in a Work Statement, sponsor's
Technical Coordinator shall commence acceptance testing following
its receipt of the Deliverables. Upon completion of such testing,
Sponsor shall issue to Developer's Technical Coordinator
notice of acceptance or rejection of the Deliverables. In the
event of rejection, Sponsor shall give its reasons for rejection
to Developer's Technical Coordinator in reasonable detail.
Developer shall use all reasonable effort to correct any
deficiencies or nonconformities and resubmit the rejected
items as promptly as possible. If the Sponsor should decide
to not accept the deliverable, any progress payments shall be
forfeit and the rights of ownership will remain with the
Developer.
[Emphasis added.]
[160] The Work Statement referred to in the above
agreement provided for the following acceptance test
procedure:
7. Acceptance Testing: The following acceptance tests
will be conducted on the Deliverables:
Platforms: The Platform Executables will have to successfully
execute the Agensys Development System Test Suite to
verify that the Agensys Development System ported to the new
environment will execute AGS. The Agensys Development System Test
Suite contains and uses the Security System and the Design System
as applications to run within AGS (runtime) to exercise it fully.
The Test Suite also has a series of applications that will
exercise each verb and verify that they perform according to
specification.
Communication Capabilities: The Deliverables must display the
capability of communicating over Ethernet with the protocols
listed in section six. As Sun running Solaris 2.3 is the only
supported platform with a product line with the scaleability to
act as a full server no matter the application, the Sun platform
will be used as the testing vehicle. Remote access to files using
these protocols will be demonstrated over the Ethernet. . .
.
[Emphasis added.]
[161] It is astonishing that such a procedure was
stipulated in the 1994 Development Agreement with respect to the
delivery of the 94 Enhancements, for which the price to be paid
by the Partnership was US$45,240, while the 1993 Acquisition
Agreement is silent with respect to such a procedure when the
price was $12,150,000! In the minutes of the February 21,
1995, management meeting (Tab 177), Mr. Gamble is
described as insisting that "Howard Kale has to live up
to his original agreement with us which includes acceptance
proceedures [sic], testing etc.". Those procedures
are not described in the 1993 Acquisition Agreement! Contrary to
what Mr. Gamble stated in his testimony, the 1993
Acquisition Agreement does not constitute the whole of the
agreement. There is at least one unrecorded additional covenant.
The 93 Acceptance Test Memo of February 8, 1995, is consistent
with the "original [verbal] agreement".
[162] I agree with Mr. Morley who wrote in his
February 19, 1995 memo to Mr. Gamble that the source
codes could not be considered "complete in terms of the
Software Acquisition Agreement" until the Software had been
"subjected to an established acceptance testing
procedure".[141] This memo deals with the "Revenue Canada
Valuation Audit" and the request from Revenue Canada for
"a demo in two weeks time". In his memo,
Mr. Morley states that the Partnership "must be able to
respond to the following type of questions":
Question 1. Article 1 of the Software
Acquisition Agreement (SAA) defines "Source Code" and
"Computer Program". Can you demonstrate that these
have been delivered, have been compiled into "Object
Code", and have been subjected to, and have passed the
Partnership acceptance testing procedures"?
Current Status. This cannot be done until the
AGENSYS Corp. completes delivery of the source code. CGI must
confirm through their audit that the Source Code delivered is
complete in terms of the Software Acquisition Agreement. This
also cannot be done until the software has been subjected to an
established acceptance testing procedure.
Action Required.
1. Have Mark Dennison[142] complete the audit and the activities set out
in his February 17 proposal ASAP.
2. Proceed ASAP with the development of the acceptance
testing procedures in cooperation with the AGENSYS Corp.
QUESTION 2. What components of the "Systems
Overview", as set out in Schedule "D", have
been delivered to the Partnership and can be demonstrated? Is
support documentation available?
[Emphasis added.]
[163] The rest of the second question is not available
because page 2 of the memo is missing.[143] However, there is this
statement on page 3, most likely the third "action
required" suggested by Mr. Morley in response to the
issue raised by his unavailable third question:
3. All software releases, including those already
delivered, should be subject to the acceptance testing
procedures and a formal process instigated for its acceptance
by the Partnerships with the AGENSYS Corp.
[Emphasis added.]
[164] So we can fairly conclude that the Described
Software had not been properly tested in 1993 and infer therefrom
that this was because it had not been completed before the end of
1993, the relevant taxation year here.
[165] Although the direct and indirect evidence is
contradictory, it appears from a reading of the different
documents produced in evidence that the Described Software was
not fully delivered as complete in 1993. As mentioned in
paragraph 13 above, the Described Software source codes
provided to the Partnership were for execution on the following
three platforms: MS-DOS, SCO Unix and Sun OS. In
fact, it would appear from the December 1, 1994, letter
(Tab 145) from Agensys T & C and the attached invoice,
that the last two platforms were only delivered by Agensys
T & C in beta form late in 1994 as part of the
94 Enhancements; the delivery of the final version of those
enhancements on January 31, 1995 was refused by the
Partnership in March 1995.[144]
[166] The earliest indication of a request to obtain the
Sun OS platform is on June 2, 1994 (Tab 95).
However, the first sign of that platform having been received is
a year later, when Mr. Karnis attempted to install it for a
network demonstration. I shall refer to that below.[145]
[167] On July 25, 1994, Mr. Morley in a memo
to Larry Gamble Nick Barisheff, states that, according
to John Batton, the "AGENSYS Version 14
[sic] and the Unix version of AGENSYS were sent to us in
June. Did we receive them?" (Tab 116.) This implies
that the Unix version may have been sent only in 1994. There may
have been an earlier beta version or the information in the memo
may have been erroneous. We do not have the reply to that memo.
In addition, there is the statement by Mr. Morley in August
1994 that "the AGENSYS Unix version, that Howard claimed was
finished, developed a bug on the first command". In his May
1995 Report, Mr. McCann states that the Software is only
available in DOS and SCO Unix! (See par. 49 above.)
This clearly indicates that the third platform (that is, Sun OS),
on which the Described Software was to run, had not yet been
completed in May 1995. Finally, it is interesting to note that
the experts who testified at the hearing only used the DOS
version to evaluate the 1993 Software.
[168] Another indication that the Described Software was
not complete in 1993 is the lack of credible evidence that
demonstrations of a complete Software took place in 1993.
Although Mr. Morley was busy early in 1994 trying to sell the
Partnership's services to develop custom made business
applications for government and for business organizations, the
earliest dates for which there is evidence of any live
demonstration for independent potential customers are May 16
and 17, 1994. At that time, live demonstration and "an
instructional workshop . . . at which a small application was
developed" were held at the Partnership's offices
(Tabs 419 and 416). This appears to have been a limited
demonstration because Mr. Morley, in his memo of
December 5, 1994, dealing with the 1994 work plan and 1995
priorities, states that we "must have completion by the end
of 1994, a first rate demo and script" (Tab 147).
[169] When Revenue Canada asked for a demonstration of
the Software early in 1995, it took almost a year before it could
take place. It is true there was a big dispute over whether
Revenue Canada's expert would give the Partnership a specific
undertaking of confidentiality. However, this was not, in my
view, the only reason for the delay. The Partnership hired
consultants (CGI) to prepare such demonstration and they needed
time to do so. It was apparently not sufficient to repeat the
live demonstration given on May 16 and 17, 1994. In all
likelihood, that demonstration was limited to the DOS platform.
In order to be able to illustrate some of the Software's key
features, for instance its portability and its interoperability,
the Partnership obtained and installed, after a lot of debugging,
the Sun OS/Solaris platform, with the assistance of
Mr. Karnis.
[170] In addition to the testimony of Mr. Gamble
(cited above) that the Partnership had received "absolute
final up-to-date object codes in December of
1992", there is some other evidence supporting
Mr. Morley's position. First, Agensys T & C's
Development Plan (received by Agensys U.S. in May 1994 and
included as an attachment to the February 8, 1995, Batton
Memo) states that "at the end of '93, the Agensys
Development System was supported by the MS-DOS and SCO/Unix
platforms". This is described as the "base
release" sold to the Agensys Partnerships (Tab 60). But
there are also the following statements by Mr. Gamble:
Q. So the support module for the UNIX was delivered to
you at what time?
A. It would be sometime, I believe, in '94,
'95. I'm not sure of the exact time sir.[146]
. . .
Q. They were platforms?
A. Yes.
Q. Do you know which ones?
A. Yes. I've already testified as to the UNIX
and the Sun Solaris.
Q. Okay. So that was done in '94, right?
A. Right.[147]
[171] In his written argument, counsel for
Mr. Morley also relies inter alia on
Mr. Pritchard's August 2003 Report, at page 4, to
establish that the 1993 Software was capable of producing
commercially saleable products in 1993. Mr. Pritchard states
on that page that "[f]rom February 1993 through 1994, I
witnessed demonstrations of the AGENSYS Software . . . Throughout
this period of review, the [Software] was a fully developed and
functional application development tool set . . . It was in
working order and was capable of developing complex business
applications."[148] However, in my view, this description by
Mr. Pritchard is not credible. It is in direct contradiction
with the testimony of Mr. Karnis, who stated that his
evaluation of the 1993 Software revealed that he could not run
the complex AGS Mortgage on the DOS platform with that software
because of a defect, which defect was repaired, according to him,
sometime between 1993 and 1996. So, how can Mr. Pritchard
state that the Software was fully operational throughout the
period "from February 1993 through 1994"? In my view,
Mr. Pritchard is not meticulous and rigorous enough to give
reliable and convincing evidence.[149]
[172] Mr. Pritchard claimed in his testimony that
he saw the Software run on a Unix platform in May 1993. However,
he may have been confused because when he was asked on what
platform Kammand had been running before that, he replied on an
IBM mini computer running "a basic assembler of some
sort" (Mr. Pritchard's transcript,
September 26, 2003, pp. 65-66). In fact, it was
running on a PC with a DOS platform. He also stated that some of
the versions of the Software were coming from "the Chicago
area" (Mr. Pritchard's transcript, p. 68). No
other witnesses made such a statement. Their testimony and the
documentary evidence identify only Phoenix, Dallas and, in the
case of Mr. Gamble's testimony, the Turks and Caicos, as
the places of origin of enhancements to the Software.
[173] In addition, Object Systems Inc. states in its
"Product Evaluation" of the Software, dated
September 6, 1994, that the "SCO Unix" and
"Solaris Unix" versions of the Software were
evaluated to confirm that the Software ran on those platforms.
However, Object Systems' assessment was focused mainly on the
PC DOS platform. That appears to be in contradiction with the
December 1, 1994, letter (Tab 145) and the McCann May
1995 Report (par. 49 above).
[174] One way to reconcile some of this contradictory
evidence can be found in a report dated July 31, 1995
(July 1995 Report). First, though, it should be recalled
that Mr. Karnis was hired in June 1995 to assist
Mr. McCann in preparing a demonstration to illustrate the
portability of the Software on DOS and Sun OS/Solaris.
Mr. Karnis's attempts to compile the Software for the
Sun Solaris platform met with a lot of difficulties. It took
him several weeks to repair defects in the program. Here is an
assessment of the problem made in the July 1995 Report.
(Tab 240):
1) Howard Kale worked with Larry Karnis and myself to
ensure Solaris version is successfully running on the Sun
machine. Finally this was completed. . . . It was quite apparent
that the development module of Agensys never worked when
reviewing Dale Grantham's code. That's why no one
ever saw the development module but just the run time
version. Files received from Howard through Dale were
incomplete and this took almost 3 weeks to resolve. We were
able to get the run time version working but not the development
module.
[175] The author of this report is unknown, but in all
likelihood it is Mr. McCann, who had asked Mr. Karnis
to assist him in the installation of the Sun/Solaris platform.
The distinction between the Development Version (development
module) and the Runtime Version is key and it offers an
opportunity to reconcile the various contradictions in the
evidence and the testimony. The Runtime Version for one or more
platforms of the Described Software may have been available as
early as 1993, but the all-important Development Version
necessary to develop business applications was only made
available late in 1994 and thereafter. For instance the
Development Versions for the SCO Unix and the
Sun OS/Solaris platforms were delivered in beta version on
December 1, 1994, as part of the 94 Enhancements. But
delivery of the final version on January 31, 1995, was
turned down in March 1995. This seems to be consistent with
paragraph 4 of the Work Statement (appended to the
94 Development Agreement, Tab 68), which reads as
follows:
4. Summary of Purpose for this Statement of Work: The
purpose of this Work Statement is to port and add functionality
to the Agensys Development System. It is to add the
platforms indentifies [sic] in the description of
Deliverables, facilitate the communication protocols identified
in the description of Deliverables and add the GUI facilities
to the AGS (runtime) portion of the Agensys Development
System identified in the description of Deliverables.
[Emphasis added.]
[176] This may also explain all the difficulties that
were encountered in June and July 1995 when Mr. McCann tried
to install the Development Version for the Sun OS/Solaris
platform. So, in all likelihood, only the DOS version of the
Software (the Runtime Version and maybe the Development Version)
was available at the end of 1993. However, it would appear from
Mr. Karnis's and Mr. Travers's expert evidence
that the Software could neither create nor properly run AGS
Mortgage because of defects.[150]
[177] In my view, the fact that Mr. Travers, the
respondent's expert, was able to program a very simple
application is not conclusive evidence that the Described
Software was fully functional. It should be remembered that he
only examined 50% of the commands and he identified "several
software bugs" when using the Application Designer module.
Mr. Karnis's examination also identified bugs in trying
to program a more complex application, such as AGS Mortgage. He
did not have enough time and resources to correct those bugs. So
we do not know for sure if there would have been any problem with
the full implementation of his solution and if there were other
bugs that full testing of the 1993 Software could have revealed.
His opinion was that the defects that he had identified "in
no way [detracted] from the Agensys overall technical merits as
an application development tool", and that it was possible
to use the 1993 Software "to create, maintain, enhance and
execute" a large and complex application such as AGS
Mortgage.
[178] However, the issue here is whether the Software
was "delivered" in 1993 and whether it was capable of
"being used . . . to produce a commercially saleable product
or to perform a commercially saleable service". It should be
remembered that the business plan of the Partnership was in the
beginning based on the product approach. I do not believe that
the Described Software could have been sold to end-users
before it had been fully tested pursuant to an "acceptance
testing" procedure as described in the 93 Acceptance Test
Memo and before the KMD-PROG instruction bug had been
solved. Even if the consulting approach had been adopted in 1993,
I do not believe that in 1993 the Described Software, with its
existing defects, was capable of properly developing an
application.
[179] It is important to state that I do not take the
view that unless a software is free of defects, it cannot be
considered to meet the test of paragraph 13(27)(d) of
the Act. I am cognizant of the fact that softwares are all too
often sold with defects. The existence of defects can only be one
of the factors to consider in making the determination required
by paragraph 13(27)(d) of the Act.
[180] One of the reasons for not giving much weight to
the opinion of Mr. Karnis, who otherwise impressed me with
his technical knowledge, is the fact that the Partnership did not
run an acceptance testing procedure before February 1995. It is
my conviction[151] that software companies would not sell products to
their clients before having subjected them to a rigorous testing
procedure. Only then could it be acceptable to have defects
remaining in a software. To act otherwise would be irresponsible
and suicidal for those companies. Therefore, if such testing was
not done by the Partnership before February 1995, it was because
the Software had not been completed; at least it had not by the
end of 1993, which is, along with 1990, the only taxation year in
issue in these appeals.
[181] Mr. Karnis's opinion can be compared to
the half-full glass of water. That glass can also be
described as half empty. Because the bulk of the evidence points
towards the conclusion that the Described Software was not
complete in 1993, I interpret his opinion as confirming that the
1993 Software was not functional in November 1993, the relevant
time at which the source codes that he examined were created.
Given the lack of evidence that the defects were repaired before
the end of 1993, I cannot conclude that the Described Software
was complete and functional in 1993.
[182] If there remained any doubt after taking into
account all the circumstances surrounding the creation of the
Described Software, that doubt would vanish once one had taken
cognizance of the following devastating assessment by
Mr. Paul Mighton in his Business Plan of September
1995, at page 8 (Tab 250), in discussing the historical
perspective of the Software's development: "A time
consuming impediment has been that the AGENSYS ADE[152] was not market
ready upon acquisition of the Global Marketing Rights."
[Emphasis added.]
[183] In my opinion, there is clear evidence to enable
to conclude that in 1993 the Described Software was not
"used by the taxpayer for the purpose earning of
income", as required by paragraph 13(27)(a) of
the Act. No sales of the Software were ever made and the Software
was not used in 1993 to create business solutions for its
potential clients. Nor am I convinced that the Described Software
was delivered[153] (within the meaning of
subparagraph 13(27)(d)(i) of the Act) before the end
of 1993 and was at that time "capable . . . of being used .
. . to produce a commercially saleable product or to perform a
commercially saleable service" within the meaning of
subparagraph 13(27)(d)(ii) of the Act.
Mr. Morley had the burden of demolishing the Minister's
assumption of fact that the Software was not available for use.
He failed to discharge that burden.
(H) If any Breach of
Mr. Morley's Charter Rights?
[184] Mr. Morley alleges that his rights under the
Charter were breached when the Minister commenced his
investigation of potential tax evasion under section 239 of
the Act. Specifically, Mr. Morley refers to sections 7
and 8 of the Canadian Charter of Rights and Freedoms,
which read as follows:
7. Everyone
has the right to life, liberty and security of the person and the
right not to be deprived thereof except in accordance with the
principles of fundamental justice.
8. Everyone
has the right to be secure against unreasonable search or
seizure.
[185] Here, Mr. Morley takes the position that the
Minister began his criminal investigation as early as August
1995, when the tax avoidance auditor indicated in a draft
memorandum to SI that he believed that a scam had been
perpetrated by the promoter of the tax shelter and that the tax
deductions were fraudulent. However, his request to send the
memorandum was turned down, presumably by his superior, so it was
in fact never sent to SI. Again, a similar memorandum, in
practically the same terms was prepared on February 7, 1996,
but it was not sent to SI either. It was only on
September 19, 1996, that such a memorandum was actually sent
and it was not until September 30, 1997, that a SI manager
advised Mr. Gamble that a preliminary criminal investigation
had been started and that Mr. Gamble had the right to remain
silent.
[186] Mr. Morley was never informed of his rights
because on October 8, 1997, when the search and seizure were
performed at his house, he was not present: he was away on
vacation. It was only on his return that he learned of the
criminal investigation. Mr. Morley claims that his Charter
rights were breached not only because he was never informed of
his rights, but also because the criminal investigation had
started, in his opinion, as early as August 1995. He was
present at meetings, including one on April 29, 1996, in
which he and Mr. Gamble were asked questions. At that time,
the Minister never informed Mr. Morley or Mr. Gamble of
their right to remain silent. Furthermore, it is also in evidence
that the tax avoidance auditor who referred the file to SI was in
communication with the investigator and provided him with
information in support of his position paper. This paper
consisted basically of his auditor's report concerning the
Partnership and was used by the investigator in deciding whether
there was sufficient reason to commence a criminal investigation
and to pursue such an investigation. This process took place from
September 1996 to August 8, 1997.
[187] It is useful to review the jurisprudence dealing
with tainted evidence and the remedy that should be afforded by
the Tax Court when dealing with an assessment of taxes and
penalties where there is tainted evidence. One of the early cases
dealing with the remedy to be granted by the Tax Court when a
breach of Charter of rights has occurred is O'Neill Motors
Limited v. The Queen, 96 DTC 1486, a decision dated
November 9, 1995, subsequently confirmed by the Federal
Court of Appeal at 98 DTC 6424. In that case, an
investigation was declared to have been improperly carried out by
the Minister's officials; counsel for the Minister
acknowledged that should the evidence thus improperly obtained be
inadmissible because it was tainted, he would not be in a
position to justify the assessment. Faced with this
acknowledgment, Judge Bowman (as he then was) decided to
vacate the assessment. However, he cautioned that vacating the
assessment should not be considered a normal course of action,
but is only to be resorted to in extreme cases.
[188] Other decisions have taken a more flexible
approach to the issue. For example, in Donovan v. The
Queen, 98 DTC 2140, a decision of October 15, 1998,
my colleague Judge Lamarre Proulx concluded that the
evidence that the auditor had not appropriately warned the
taxpayer on visiting him accompanied by an investigator from the
SI was not sufficient to affect the validity of the ensuing
assessments against the taxpayer, these being by their nature
civil rather than criminal measures from the Minister's
assessment. On appeal from that decision, the taxpayer alleged
that four main wrongs had been committed against him with regard
to the search and seizure. The Federal Court of Appeal, at
2000 DTC 6339, confirmed this Court's decision with
respect to three of the wrongs. It was only with respect to the
fourth that a portion of the assessment was vacated. That
judgment by the Federal Court of Appeal was also issued before
the Supreme Court of Canada's decision in R. v.
Jarvis, [2002] SCJ No. 76 (Q.L.), 2002 SCC 73, discussed
below.
[189] In order to determine whether
Mr. Morley's Charter rights have been breached, it is
important to review what powers the Minister has in prosecuting
at the same time an investigation (investigation) for the
purpose of determining penal (criminal) liability and an audit
(audit) for assessing taxes owing by a taxpayer, including
the assessment of a civil penalty. The most recent relevant
judgment of the Supreme Court of Canada, that in Jarvis,
is very enlightening in this regard. In paragraph 85 and
following, the Court expresses its view on how to delineate the
bounds between an audit and an investigation, stating in
particular at paragraphs 88-94, and 97:
88 In our view,
where the predominant purpose of a particular inquiry is the
determination of penal liability, CCRA officials must relinquish
the authority to use the inspection and requirement powers under
ss. 231.1(1) and 231.2(1). In essence, officials
"cross the Rubicon" when the inquiry in question
engages the adversarial relationship between the taxpayer and the
state. There is no clear formula that can answer
whether or not this is the case. Rather, to
determine whether the predominant purpose of the inquiry in
question is the determination of penal liability, one must
look to all factors that bear upon the nature of that
inquiry.
89 To begin with,
the mere existence of reasonable grounds that an offence may
have occurred is by itself insufficient to support the conclusion
that the predominant purpose of an inquiry is the determination
of penal liability. Even where reasonable grounds to suspect
an offence exist, it will not always be true that the predominant
purpose of an inquiry is the determination of penal
liability. In this regard, courts must guard
against creating procedural shackles on regulatory officials;
it would be undesirable to "force the regulatory
hand" by removing the possibility of seeking the lesser
administrative penalties on every occasion in which
reasonable grounds existed of more culpable
conduct. This point was clearly stated in McKinlay
Transport, supra, at p. 648, where Wilson J. wrote:
"The Minister must be capable of exercising these [broad
supervisory] powers whether or not he has reasonable grounds for
believing that a particular taxpayer has breached the
Act." While reasonable grounds indeed constitute
a necessary condition for the issuance of a search warrant to
further a criminal investigation (s. 231.3 of the ITA; Criminal
Code, s. 487), and might in certain cases serve to indicate that
the audit powers were misused, their existence is not a
sufficient indicator that the CCRA is conducting a de
facto investigation. In most cases, if all
ingredients of an offence are reasonably thought to have
occurred, it is likely that the investigation function is
triggered.
90 All the more,
the test cannot be set at the level of mere suspicion that an
offence has occurred. Auditors may, during the course of
their inspections, suspect all manner of taxpayer wrongdoing,
but it certainly cannot be the case that, from the moment such
suspicion is formed, an investigation has begun. On what
evidence could investigators ever obtain a search warrant if the
whiff of suspicion were enough to freeze auditorial
fact-finding? The state interest in prosecuting those who
wilfully evade their taxes is of great importance, and we
should be careful to avoid rendering nugatory the state's
ability to investigate and obtain evidence of these
offences.
91 The other pole of
the continuum is no more attractive. It would be a fiction
to say that the adversarial relationship only comes into being
when charges are laid. Logically, this will only happen once the
investigators believe that they have obtained evidence that
indicates wrongdoing. Because the s. 239 offences contain an
element of mental culpability, the state will, one must presume,
usually have some evidence that the accused satisfied the mens
rea requirements before laying an information or preferring an
indictment. The active collection of such evidence
indicates that the adversarial relationship has been engaged,
since it is irrelevant to the determination of tax liability.
Moreover, although there are judicial controls on the
unauthorized exercise of power (Roncarelli v. Duplessis,
[1959]
S.C.R. 121; Babcock v. Canada (Attorney General), 2002
SCC 57, at para. 25), we believe that allowing CCRA officials
to employ ss. 231.1(1) and 231.2(1) until the point where charges
are laid, might promote bad faith on the part of the
prosecutors. Quite conceivably, situations may arise in
which charges are delayed in order to compel the taxpayer to
provide evidence against himself or herself for the purposes of a
s. 239 prosecution. Although the respondent argued that such
situations could be remedied by the courts, we view it as
preferable that such situations be avoided rather than
remedied. It is for this reason that the test is as set out
above.
92 Whether a
matter has been sent to the investigations section is another
factor in determining whether the adversarial
relationship exists. Again, though, this, by itself, is
not determinative. An auditor's recommendation that
investigators look at a file might result in nothing in the way
of a criminal investigation since there is always the possibility
that the file will be sent back. Still, if, in an auditor's
judgment, a matter should be sent to the investigators, a court
must examine the following behaviour very closely. If the
file is sent back, does it appear that the investigators have
actually declined to take up the case and have returned the
matter so that the audit can be completed? Or, does it
appear, rather, that they have sent the file back as a matter of
expediency, so that the auditor may use ss. 231.1(1) and
231.2(1) to obtain evidence for a prosecution (as was found to be
the case in Norway Insulation, supra).
93 To reiterate, the
determination of when the relationship between the state and the
individual has reached the point where it is effectively
adversarial is a contextual one, which takes account of all
relevant factors. In our opinion, the following list of
factors will assist in ascertaining whether the predominant
purpose of an inquiry is the determination of penal
liability. Apart from a clear decision to pursue a criminal
investigation, no one factor is necessarily determinative in and
of itself, but courts must assess the totality of the
circumstances, and make a determination as to whether the inquiry
or question in issue engages the adversarial relationship between
the state and the individual
94 In this
connection, the trial judge will look at all factors, including
but not limited to such questions as:
(a) Did the
authorities have reasonable grounds to lay
charges? Does it appear from the record that a decision to
proceed with a criminal investigation could have been made?
(b) Was the
general conduct of the authorities such that it was
consistent with the pursuit of a criminal investigation?
(c) Had the
auditor transferred his or her files and materials to the
investigators?
(d) Was the conduct
of the auditor such that he or she was effectively acting as an
agent for the investigators?
(e) Does it appear
that the investigators intended to use the auditor as their agent
in the collection of evidence?
(f) Is the
evidence sought relevant to taxpayer liability
generally? Or, as is the case with evidence as to the
taxpayer's mens rea, is the evidence relevant
only to the taxpayer's penal liability?
(g) Are there any
other circumstances or factors that can lead the trial
judge to the conclusion that the compliance audit had in reality
become a criminal investigation?
It should also be noted that in this case we are dealing with
the CCRA. However, there may well be other provincial or
federal governmental departments or agencies that have different
organizational settings which in turn may mean that the above
factors, as well as others, will have to be applied in those
particular contexts.
. . .
97 The
predominant purpose test does not thereby prevent the CCRA from
conducting parallel criminal investigations and administrative
audits. The fact that the CCRA is investigating a
taxpayer's penal liability, does not preclude the possibility
of a simultaneous investigation, the predominant purpose of which
is a determination of the same taxpayer's tax liability.
However, if an investigation into penal liability is
subsequently commenced, the investigators can avail
themselves of that information obtained pursuant to the audit
powers prior to the commencement of the criminal investigation,
but not with respect to information obtained pursuant to such
powers subsequent to the commencement of the investigation into
penal liability. This is no less true where the
investigations into penal liability and tax liability are in
respect of the same tax period. So long as the predominant
purpose of the parallel investigation actually is the
determination of tax liability, the auditors may continue to
resort to ss. 231.1(1) and 231.2(1). . . . Put another way, the
requirement powers of ss. 231.1(1) and 231.2(1) cannot be used to
compel oral statements or written production for the purpose of
advancing the criminal investigation.
[190] So, in light of the above, it is clear that it was
possible here for the Minister to carry on at the same time an
audit with a view to issuing a new assessment and an
investigation for determining whether there were grounds to
charge Mr. Morley (and other persons involved with the
Partnership) under section 239.
[191] It is important to recall some relevant facts and
key steps in the audit. The audit started sometime in July or
August 1994. Actually, a letter dated July 22, 1994, was
sent by an auditor at the tax avoidance section to
Mr. Gamble. After a lenghty correspondence and a number of
meetings, demonstrations and disputes over whether the source
codes would be provided to the consultants hired by the Minister
to assess the nature of the Software and its value, the audit was
completed in July 1996. The tax avoidance auditor was ready to
inform the Limited Partners of the minister's intention to
reassess them on July 31, 1996 (Tab 335), but
Mr. Beach was able to stonewall this process until October
1996 (Tabs 328, 338, 339, 341, 352 and 354).
Mr. Morley's audit was formally completed only in
November 1997, after he had requested more time to make
representations to the Minister and, after he had signed a waiver
to that end. But it was a case of applying to him the same
determination as that which had been made with regard to the
others. The meetings that took place after the November 1996
assessments were mainly at the request of Mr. Gamble. This
was the case for the meeting held on April 29, 1997, at which
Mr. Morley and the Director, Tax Avoidance were present
(Tabs 389 and 390).
[192] It should be remembered that the fact that a tax
avoidance auditor had reasonable grounds to believe that an
offence had been committed is not sufficient in itself to justify
a determination that an audit has turned into an investigation
(paragraph 89 of Jarvis). It must be ascertained
whether the predominant purpose of an inquiry is the
determination of penal liability. Furthermore, the fact that the
file had been sent to the investigations section is not in itself
determinative with regard to an investigation having begun (see
paragraph 92 of Jarvis).
[193] In addition, it is stated in paragraph 97 of
Jarvis that it is possible to carry out at the same time a
criminal investigation and a civil audit. For the purposes of the
audit, there is no requirement that the taxpayer be informed of
his right to remain silent. So, when all the facts are
considered, it is difficult to conclude here that the work done
by the tax avoidance auditor was performed in the course of a
criminal investigation. I do not believe that his mere suspicion
that there may have been reasonable grounds is sufficient to turn
his activities into a criminal investigation. That his superior
did not approve his referral of the case to SI may, moreover, be
indicative of the fact that his grounds were not sufficient even
for a referral to SI. In any event, it was not the tax avoidance
auditor's job to investigate a criminal offence. That was the
SI investigator's role. There is no evidence that the tax
avoidance auditor acted as an agent for the SI investigator or
that he passed on to the investigator any information obtained
after the criminal investigation started.
[194] It is possible that the tax avoidance
auditor's superior made his decision to postpone the referral
of the tax avoidance auditor's file to SI for improper
motives, but evidence of that was not adduced before me and I
have no reason to believe that such was the case. Furthermore,
there is no evidence that the information obtained by the tax
avoidance auditor was so obtained for the main purpose of
carrying out a criminal investigation. The fact that the audit
process was almost finished in July 1996 and that it was
completed sometime in November 1996 with respect to a large
number of the Limited Partners supports the position that the
meeting that took place subsequent to the referral to SI was in
response to the request by the taxpayer for a meeting.
Mr. Gamble was still hoping that he could convince the audit
section that there were no grounds for disallowing the
losses.
[195] In addition, there is no evidence that would
indicate that the tax avoidance auditor provided to the SI
investigator any information that was obtained after the
completion of his information paper. When cross-examined
during his examination for discovery, that auditor was not asked
to detail the kind of information he would have provided to the
SI officer. For all these reasons, I conclude that there is no
proof that Mr. Morley's Charter rights have been
breached.
[196] At the hearing of a pre-trial motion, I had
informed the parties that the Charter violation issue would have
to be raised at the time of the filing of the exhibits. At the
hearing, no such issue was raised when these were filed. Since he
consented to the production of most of the evidence, it would be
difficult to imagine how Mr. Morley could put forward any
ground for vacating the assessment. As indicated in his written
argument, counsel for Mr. Morley submitted that the Charter
argument might be more relevant in the determination of costs.
Given that this issue has been raised, I indicated that I would
not issue an order as to costs prior to having given both sides
an opportunity to make representations.
III Conclusion
[197] For all of these reasons, the appeals of
Mr. Morley will be allowed and the assessments for the 1990
and 1993 taxation years will be referred back to the Minister of
National Revenue for reconsideration and reassessment on the
basis that he is entitled to his share of the Partnership's
losses, that these losses should be determined taking into
account the fact that the Software was acquired by the
Partnership in 1993 for the purpose of earning income from its
business but was not available for use in that year, and that the
penalties should be vacated.
Signed at Ottawa, Canada, this 13th day of April, 2004.
Archambault, J.